for the defense · michael p. heiskell, co-directhg the course for the &st time this year, has...

. F O R T H E D E F E N S E

Off~c~al Journal of the Texas Crmnal Defense Lawyers Assoc~at~on May 1994

Robert A. Price IV Michael P. Heiskell

.:. . ' . . .

Directors, - r ~ ~ .. . . 2 ? , ,L ~- . . . ,.>.

The Honorable M.P. llRustyll Duncan, III7th Annual TCDLA ADVANCED CRIMINAL LAW SHORT COURSE

San Antonio, Texas June2-4,1994

FOR THI O 1994 TEXAS CtUMlNAL DEEENSE LAWYERS ASSOCIATION

Columns 10 President's Message - Government Still Not to be Trusted hy Davld Bires

News -

12 In and Around Texas -Justice Department's Top Ten Prockmations, State Bar Executive Director Resigns by John Boston

34 SigniAcant Recent Decisions - Part 2 by Catherhe Greene Burnett

37 Granted Petitions for Discretionary Review

4 CLE Schedule 1994 5 Rusty Duncan Advanced Criminal Law Short Course 7 Rusty Duncan Course Directors 7 Notice - Editor Wanted 8 Advertisement - Professional Liability Insurance 9 Federal Motions Forms Diskettes for Sale 14 Ad - Texas Sentencing Sourcebook 24 Ad - Cayman Island - Texas Advanced Criminal Law Seminar 39 publications

1993-1994 C o d t Q e s Tim Evans

DEFENSE

VOLUME 23, NO. 4

Features

E.G. Man%%, &zit

Short Ranee Planning Edward A. Malleft, Cbair

Nominating fl

Ron Goranson, C

15 Negotiating and Enforcing Plea Agreements: A Primer on Plea Bargaining Under the Federal Sentencing Guidelines by M. Todd We@

21 Trial Evidence - Part 9 by F. R. !Buck"Ffle.s

23 General Thoughts on Trying the "Intoxilyzer Result" DWI - Part 2 by Tom Pappas

25 Innocent UntU Proven ~ndigent - Part 3 by Randy Wikion

32 An Update on the Ongoing Abuses Found in the Texas Parole Revocation Hearings - Part 2 by WiUiam T. H&em

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

I CONTINUING LEGAL EDUCATION I Tentative Seminar Schedule

1994-1995 TCDWCDLP

May 19-20,1994 CDLP Skills Course Beaumont

June 24,1994 TCDLA "Rusty" Duncan Advanced Criminal Law Short Course San Antonio

June 3,1994 TCDLA President's Party San Antonio

June 4,1994 TCDLA Annual Meeting San Antonio (The Plaza San Antonio Hotel)

July 14-1591994 CDLP Skills Course Corpus Ghristi (Corprrs Christi Marriott)

July 16,1994 TCDLA President Retreat Mustang Island

August 11-12,1994 CDLP Skills Course Amarillo

September 22-23,1994 TCDLA Advance Federal Law Short Couse Austin (Omni Horel)

October 20-21,1994 CDLP Skills Course McAllen

October 22,1994 CDLP Executive Committee Meeting

1 McAllen

*SBOT Annual Convention: June 22-25,1994 SBOT Advanced Criminal Law Crse. July 25-28,1994

November 17-18,1994 CDLP Skills Course Longview

December 8-9,1994 CDLP Skills Course Dallas

December 10,1994 TCDWCDLP/TCDLEI Executive and Board Meetings Dallas

January 19-20,1995 CDLP Skills Course El Paso

February 22-261995 TCDLA Winter/Spring Trip SEMINAR SPONSORED BY NACDL Lake Tahoe

Austin Dallas

JOURNAL OF THE TEXAS CRIMINAL WPENSB IAWYERS ASSOCIATION

VOICE for ttheDefnse (ISSN 0364-2232) is published regularly by the Texas Criminal Defense lawyers Assmiation, 600 W. 13th Austin, Texas 78701. (512) 478-2514, FAX No. (512) 469-9107. Annual subscription rate for members of the association is $100, which is included in dues.

Please send aU artides to Gary Udashen, 2515 McKinney, Suite 15W, I. B. 21, DaUasTexas 75201, (214) 651-1121. Please send ail columns to Mark Stevens, 310 S. St. Mary%, Tower Life Bldg., Ste. 1505, San Antonio, Texas 78205 (210) 226-1433,

V O I C E FOR THE DEFENSE

The Honorable M. P. "Rusty" Duncan 111 7th Annual TCDLA

ADVANCED CRIMINAL LAW SHORT COURSE The Plaza San Antonio Hotel

555 So. Alamo Street San Antonio, Texas

June 2-4, 1994 . The Texas Criminal Defense Lawyers announces its seventh annual advanced criminal law short course, named in honor of the late Honorable M.P. "Rusty" Duncan, 111. The course is designed to cover state law and will address topics which should be covered on the State Bar specialization examination in criminal law. The seminar will be held in conjunction with the Annual Meeting of the Texas Criminal Defense Lawyers and the TCDLA President's Ball. 15.00 CLE hours, including 1 hour of ethics, will satisfy the minimum CLE requirements for all attendees.

Course Directorst Michael P. Heiskell, Fort Worth Robert A. Price, IV, San Antonio

Thursday, June 2,1994 8:OO - 8:50 Registration 8:50 - 9:OO Welconle and Opening Remarks 9:OO - 1O:OO Recent Decisions From the Court of

Criminal Appeals Judge Charles Baird, Austin

1O:OO - 10:15 Refreshment Break 11:15 - 12 00 noon Punishment

Bennie Ray, Austin 12:OO noon - 1:15 Luncheon

"David(ian)s vs GoCvernment)liath 11" Speaker: J. Douglas Tinker, Corpus Chrlsti

1:15 - 2:OO Oral Advocacy & Brief Writing Brian W. Wice, Houston

2:OO - 2:45 Cross-Examination Mark Daniel, Port Worth

2:45 - 300 Refreshment Break 3:OO - 345 Extraneous Offenses

Jack V. Strickland, Fort Worth 345 - 4:30 State Forfeitures

W. Troy McKinney, Houston 4:30 - 530 Effective Voir Dire

Robert B. Hirschhorh, Galveston

Friday, June 3,1994 835 - 900 Legislative Update

Betty Blackwell, Austin John C. Boston, Austin

9:OO - 945 Capital Murder Ovemiew Mark Stevens, San Antonio

Refreshment Break Ethics and Attorney Misconduct Richard Alan Anderson, Dallas Juvenile Lanr Professor Robert Dawson, Austfn Lunch (on your own) The law of DWI Stuart Kiaard, Austin DWI Defense Techniques-Pre-Tdal Motions and More J. Gary Trichter, Houston Defending Child Sex Abuse Cases Mary Conn, Houston Refreshment Break Granting and Revoking Parole Wm. T. "BU" Habern, Riverside Jury Argument Alan Levy, Port Worth Adjourn

Saturday, June 4,1994 8:45 - 9:30 Smart Weapons and Hi Tech

Demonstrative Evidence E. X. Martin, Dallas

950 - 10:15 Pre-Trial Motions Gerald H. Goldstein, San Antonlo

10:15 - 11:OO Trial By Press: "Rumination on the Hutchison Case" Dick DeGuerln, Houston

11:OO - 11:15 Break 11:15 - 1:00 TCDLA Annual Meeting

Sponsored by: Texas Criminal Defense Lawyers Association

Continued on nsctpage

5

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

PRE-REGISTRATION: To take advantage of preregistration benefits, complete attachedform, detach and mail w~ th your check for $250 for TCDLA members, or $275 for non-members, payable to the TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION. Your registration must reach us no later than May 25,1994 in order to assure receipt of course materials. Confirmation may be made by calling our office (512) 478-2514.

DOOR REGISTRATION: Registration will be accepted at the door for $275 for TCDLA members and $300 for non-members. (The extra fee covers reprinting and handling charges of course materials.) Handouts are printed in advance based on preregistration numbers; door registrants may have to wait two weeks to receive materials.

MCLE CREDIT: This course presents up to 15.00 hours of MCLE credit. It has been approved by the Minimum Cont inuing Legal Education Department of the State Bar of Texas.

SPECIALIZATION: Credit for attendance at this seminar may be utilized toward the continuing legal education requirements for the certification and recertification of attorneys in criminal law by The Texas Board of Legal Speciakation.

REFUND: If you are unable to attend the course, you will receive all course materials within two weeks.

TAXDEDUCTION: An income tax deduction may be allowed for expense of education (including travel, meals, and lodging) directly related to maintaining and improving professional skills required in employment. (SeeTreas. Reg. 1.1625; I.R.S. Letter Ruling 7746068, 9-1-77; Coughlin u. Commissione?; 203 F.2nd 307).

TAE COLLEGE OF THE STATE BAR OF TEXAS: Credit of 15.00 hours may be utilized toward the total continuing legal requirements for membership in The College o f The State Bar of Texas.

SMOKING WILL NOT BE PERMIlTED IN THE MEETING ROOM.

HOTEL REGISTRATION CARD [n order to secure your hotel reservation at reduced group rates, this card, letter, or call identifying you with the TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION must be recelved by the hotel on or before Wednesday, May 4,1994.

The Plaza San Antonio Hotel $105 Single/double 555 So. Alamo Street + Tax San Antonio, TX 78205 (210) 229-1000

I will check in on

and out on

I am attending the HONORABLE M.P. "RUSTY" DUNCAN, 111 -ADVANCED CRIMINAL LAW SHORT COURSE which is being conducted by the TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION.

Name

Address

City/State/Zip Credit Card and number for LATE ARRIVAL GUARANTEE (after 6 p.m.)

Car- * Expires

COURSE PRE-REGISTRATION FORM T M ~ HONORABIE M.P. "RUSTT' DUNCAN m

7TH Annual TCDLA ADVANCED CRIMINAL LAW SHORT COURSE

.TUNE 2-4,1994 PREREGISTRATION BENEFITS; Your registration must reach our office by Wednesday, May 25 in order to guarantee receipt of course materials at the seminar. Be sure to include vour $250/$275 reeistration fee.

Name

City/State/Zip Code

Telephone (- 1

County Bar Card No.

Current Occupation I am o , am not o a member of the Texas Criminal Defense Lawyers Association. RETURN TO: Texas Criminal Defense Lawyers

Association 600 West 13th Street Austin. Texas 78701 (512)478-2514

'lease make your reservations NO LATER than May 4th. The Zoom Block will be held until then, but the rooms will be -eleased after May 4th.


Meet the Rusty Duncan Course Directors The SeYenthAnnualXusty Duncan AdvancedCSiminal Law Short Cpurse is being held 2 - 4June in San Antonio. See schedule

in this issue. TheCourse Directors this year areRabenA. Price IV, San Antonio, who co-directedlastyds progm, andMichael P. Heiskell of Fort 'raoah.

Robert A. Price N, a 1971 University of Texas Law School graduate, is a member of ?he TCDLA Board of Directors, the StateBarofTeSs Board of Directors, andPresidemoftheSan Antonio Bar Association.

Price isceaified in criminal law by theTexas Board of Legal Specialization. In addition to directing the Honorable Rusty Duncan Advanced Criminal Law Short Course for the second time in 1994, he was "Rlng Anchovy" at the nationally famous San Antonio Resta in 1993.

Michael P. Heiskell, co-directhg the course for the &st time this year, has been nominated as TCDLA Secretary far 1394-95. Heiskell was graduated from Baylor University with a D.A. in 1972 and from Baylor Law Schoolin 1974. He sewed as an assistant district attorney in Galveston and an assistant US. attorney in Dallas. Since 1984 he bas been in private practice, concentrating on defense of srate and federal cases. He has been a voluntary sustaining E D L A member since 1987 and member of the Board of Directors since 1989. He is a name pxtnernrith the Fort Worth firm of JohnSon, Vaughn and HeiskeI1.

EDITOR WANTED TheTCDLA~residentand~oard of Directors onbehalfatthe VOICEfortbeDefen~~is seeking aneditor-in-d1ideffecth.e

immediately. The Voice editor is established by the TCDLA bylaws. Aaide VII, Sec. 11'. and requires thatthe editor be aTCDLAmemberingood standing andserve at the pleasure of the President nndBoard of Directors, The editorbecomes, by virme of that position, a menher of the Board of Directors, an officer, a d a member of the ExecuUve Committee.

The editor-in-chief sets editorial poky by, "I. . . securing nlaterials for publication and performing technical editing Of published n~aterials" fora ten-issue per year magazine. Business functionsof the magazine ate conducted from the TCDLA home ofice, so the editor's padtion daes not require day-to-day supervision and con~o l of production or financial managenlent of the magazine. The duties also include writing the editor's column for each issue of the magazine.

If you have experience in writrng and editing, an interest inbecoming the Vdceeditor, andawillingness to make a three to four year comnrItment to this prestigious but unpaid position, please submit your resume to the TCDLAlwme office, 600 West 13th St., Austin, Texas 78701.

AT LONG

LAST . . . . . . . . . . -

TCDLA ANNOUNCES A PROFESSIONAL LIABILITY INSURANCE PROGRAM FOR ITS MEMBERS

Through the joint efforts of TCDLA, TexMark, and National Casualty Insurance Company (Rated A+15 by A.M. Best), TCDLA Members have access to outstanding coverage at highly competitive rates.

Today you can obtain numerous quotes for professional liability insurance. Make sure one of these quotes is from your association sponsored program.

TCDLA has recognized fluctuating trends in this area and is working hard to stabilize premiums for many years to come.

Policy Highlights

Easy to read policy

Unlimited prior acts coverage available

Covers all legal and notary services

Up to $5,000 may be paid annually with no deductible for defense of disciplinary proceedings

Innocent insured protection

Duty to defend policy

Annual Aggregate Deductible

Insured's consent required to settle claims

30-day free "Extended Reporting Period" with outions to 60 months

For information please reply to:

Insurance Agency, Inc. Martha Stebbins

14135 Midway Road Suite #300

Dallas, Texas 75244 (8@588-0013

Fax: (214)386-8081


NOTICE

THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

ANNOUNCES

92 FEDERAL MOTIONS FORMS DISKETTES FOR SALE

$75.00 + tax TCDLA members $150.00 + tax NON-members of TCDLA

("These diskettes will be offered free to new members joining TCDLA)

Please mail your check to:

Texas Criminal Defense Lawyers Asssociation 600 West 13th Street Austin, Texas 78701

Name:

Address:

City: State: Zip:

I am I am not a member of the Texas Criminal Defense Lawyers Association.


President's Message:

by David R. Bires

Government is StlU Not to be Trusted

In 1787, James Madison drafted a constitution which reflected the revolutionary attitudes of our founding fathers. Even so, the distrust of government ran so deep that adoption of the Constitution was not secured without the addition of the first ten amendments, ourBill of I(Ighb, designed to guarantee the rights of the people against the overbearing power of the State. The nature of democracy is precarious. The rights of individuals must be protected from the will of t l~e majority.

Today, the struggle continues and we as criminal defense lawyers must be in the vanguard of the continuing fight to preserve individual liberty. We must stand together in a continuing effort to oppose the tendency of government to intrude upon the guatanteed rights of individuals.

The other day, as I listened to a news program concerning the continuing debate ahout the caning of an American in Singapore, the commentator played a rape of a person incensed about the problem of crime in Anlertca who espoused the view that we in America were oppressed, not by thegovernment, but by crinlinals who threatened the peace and safety of the people. She postulated that it was better to suffer ~pprcssion by thc govcrnmcnt, :icting in [he i m t intercst of tllc ~eoole. t l lnt i . . to be oppressed by criminals acting for their own selfish purposes. This proposition struck home with me. My

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

personal phtlosophy is that we as a people can withstand and survive the worst mischief that any criminal or group of criminals can work upon us. That we cannot sunrive, and renuin a free people, is official oppression. It is

- its lawsinordertopratectandguarantee the rights of the people from govermlent's excesses.

As President of TCDLA I call upon each of you to help us increase our menihership. Urge your friends and colleagues to join TCDLA. As an association weare committedto helping individuals to confront and withstand unfair attacks by she government and its agents.

Our Strike Force and Amicus ~r)~nmittces arc active and efk:clivc in defending thu rights o f intlivitl~~:~ls. 'I'ile other day, I ran into Judge Larly Gist froni Beaumont, who remarked that when he needed help in the face of

~~ ~ id . h .*_; grg~!,$ed fr@f~t& , , ~ ~ v e ~ ~ ~ & ~ e ) z a ~ , ~ u ~ t i t i ~ , , w i t h a B.A. & C;duaqm& 3~ @@.. &. Bires ... , gdduafea from "

, ... rhe'tmiver4ity exas as taw. ' q ~ l ~ s l ,jn- &'is .W;ard Gstinedm~ m a l l a a ~ s i k h theTexzs Uoanl of kg;d Speclaliarion and has

. lren I~~drd ~ertiiiedsince 1976. 1le 113s a v&&iti.t-.riinin&ItB$I t@tdappgnai_e

Lprnctice, hbdthStateandK(Iw&@~rtc <i,@.mim;~j Texas; H e has:. &@i?,,P cchi@pxactition-erih Houctm. for~22 y%f& .kccBy@.$:a;p@st$PFkWnt bf ~. the_ Harris CoMy Crimin.61- Defenss 'i.iq+q &~@1a$i6n, 'n;n@lth'e&vga- ; h. of Certified, Specklf&in Cri@ha&r:. gc is g2 miirbeK~f fhti Texas Board of wd S~eCializii&qn cri&inal ~wfirAdvTsiiry COw&on: ile is:alm pellow of theTexas crili;E&i Defene La.ivyers Educational Institute. He has beenan.authorand speakerfdr tlie StatC3Bat of Texas Advanced Crimi- nal &aw course and other State. pa: sf Texas CLE pmgrams. Hehas also f%%@ ana~thorandspeak~forTCO1A~ C@$ and . h $ m i t y - . ~ f ~ 'Z%imstm .GLE,,g&

. . ... ~ .gra@;, , - : * ' s . . . , , ~ ~ . - , ,,:; ,, -. . -' .

~&-islieensed. by&,U.S, &p&e C o q ~ Texas Supreme Court, the Fifth and ~&venth Circuit Courts ~EAppal, and the Southern~an8 W&<@&D&rg? Courts of the United States: . . '.

, . , ~. ~ , . . . .~ , . ,.. . . .= ~ ~. . , . . .

iuididalqualifications committeeaction, only XDLA's lawyers canie to his aid. He said he would never forget.

Our legislative committee is preparing the most extensive legislative pmgram we have ever had for the 1995 session of the State Legislature. A review of legislation passedin the last sessionand the recent crime package passed by the U.S. Houseand Senate should convince anyone how important it is for us to be involved in this process.

Our CLE c~nlmittee is nonr planning a seminar for August 1994 on the new penal code which becomes effective in Septeniber 1994. Our purpose is to provide meatlinghi1 CLE which will help eachlanyerbeconien~ore effective in representing his clients.

We l ie ih a timewhen the people our state and country are being whipped into a frenzy by the media which decries that the peace and liberty of the people are being destroyed by violent criminals and drug lords. Demagogues exploit the fear and frustrations of our citizens over the issue of crime. Government assures the people that only criminals hide behind constitutional rights and that sacrif~ces of individual rights must be made to insure the peace and safety of the majority of law-abiding citizens.

It is our, and our children's rights and liberties which are at jeopardy today. We must each continue to zealously defend the rights of the citizen accused. We must join together with othe1.s to protect and conifort ourselves in this ongoing battle to insure individuallights. Let's all stand together in this f ~ h t .

My term as President of TCDLA is nowover, but Ilookfomard toworking with each of you in our continuing efforts to protect and insure the mle of law and the rights of individiials. Thanks to everyone for your support and encoumgement. Remember, we are all in this together.

Goodbye,

David R. Bires, President TCDLA H

PAST PRESIDENTS

JudgeJA. "Jh" Bob0 Odessa (1987-1990)

Thomirs G. Sharpe, Jr. Drownsvillc (1783-84)

c. Anthony Friloux, Jr. Houston (1972-73)

stank Maloney Austin (1771-7a


In and Around Texas by John Boston

Justice Department's Top Ten Proclamations,

State Bar Executive Director Resigns

This Voice'scolumnwdl consist mainly of remarks from Past President Knox Jones reporting on some Justice ("Just Us") Department statistics reported in February 1994. Again, it's suspicions confirmed.

Next, theannual RustyDuncaneourse will he just days away, 2,3 and 4 June, when you read this, so plan to attend for the CLE, the party Friday the 3rd, and the annual membership meeting following the course conclusion Saturday the 4th. See course notice with details elsewhere in this issue.

The amendments created by Senate Bill 1067, 73rd Legislature, become effective on 1 September 1994. CDLP andTCDLA wIl1 conduct courses ciuring the coming summer on these changes with focus on,the new state jail felonies and implementation of the state jail sentencing throughoutTexas. Also, the June and July/August issues of the Votce will have discussions of these changes.

My thanks to Knox Jones for his quotes and comments, which follow.

Top Ten Proclamations by the Department ofJustice for 1934 (From the home office in Washington, - D.C.) by Knox Jonss, Past President, TCDLA

On February 4,1994, the office of the Deputy Atrorney General, with the assistance of the Bureau of Prjsons, et. al., submitted a study for the "review and consideration" of the Attorney General.

The Criminal Defense Practitioner would be well-served to have a general awareness of the conclusions encompassed by this report: "Analysis of non-violent drug offenders with [minimal criminal histories." Statistical


data, and conclusions derived therefrom, published by the Department of Justice, can be useful both i~ plea-bargaining and at the sentencing iuncture. An expansion of the followinginformation can be found in Volume 54, No. 19 of theCriminalLawReporter(54CRL2101). There are few surprises, but Inany imeresting revelations. The focus is on low level dtug offenders with minimal ar no prior criminal history. Their respective offenses did not involve "sophisticared"c~inlinalactivityand rheir offense behavior was nonviolent. Here are therop tenfindingsand conclusions:

10. The Btrreau of Prisons calculates it costs about $20,000.00 a yearto house a federal offender. "Some might argue that these resources could be used more efficiently to promote other crhninal justice needs-." Sosayeththe Department of Justice.

"The data from this study confirmed that federal drug offenders, even those withminororno past crinlinal behavior, are receiving much longer sentences that they were prior to the 1986 Anti- Drug Abuse Act."

Using the Govcmment's figures, a d warning the reader that one definition of a lawyer is a person who cannot stand the sight of blood, nor add or subttact, the author calculates that cost to the tax-payertoincarcerate theselow level offenders for 80 months is $1,957,920,000 (16,316 x $120,000) or $239, 541,229.39 per yew.

9. Low-level offenders constitute 36 percent of a11 drug law offenders in prison and 21 pement of the total sentenced federal prison population.

8. b - t h i r d s of federal low-level

offenders received mandatory minimum sentences.

7. ' I l l e m o f low-level affenders had no prior contact with the criminal justice system.

6. At present, thereare16,316federaJ prisoners who can be classified as low- level drug law violators.

5. Sentences for low-level offenders have increased 150% From what they weFe prior to the implementation of the sentencing guidelines, coupled d t h mandatory sentencing legislation.

4. The average sentence of low-level offenders is 81.5 months. Under the sentencing guidelines, they will serve on average, W five years, nine months.

3. The length of incarceration does not positively or negatively iduence recidivism.

2. Low-level offenders are "muchless likely" than high level defendants to reoffend after their release, and if they dozecidivate, theyareunlkelytocommit a crime of violence.

1. For low-level defendants, a prism sentence is iust as likely to deter Future offenders as a lone orison ~entence.

.***.

State Bar Executive Director Resigns

(Austin) -Karen R. Johnson, the first woman executive director of the 58,000

member State Bar of Teas, has announced her resignation, effective ruly 1,1994. Johnson. whocame to the irate Dar July 1, 1990, has accepted a msitionwith Entergy Corpotation/Guff States Utilities as Vice-president, State ~overmnental Affairs -Texas. She d l1 $e based in Austin. Johnson's career highlights include ;efYingasspecialassistantforlegi&tiv~ tffairs for a Texas governor, as an ~ssistant attorney genernl for Texas, tnd as a member of Austin law firm of %in Gump Strauss Hauer & Feld in &ustin. She has also held several top oanagement positions in the office of he State cOmptr&r,andwas a briefing lttoruey for the Texas Supreme Court.

**- ORDER APPOINTING DISTRICr

JUDGE TO CONSIDER INTERCEPTION APPLICATIONS 1P.I

THE FIRST A D n m REGION

On this 15thday of March A.D., 1994,

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

New from Sterling Publishing: I

by Ken Anderson and John Brad ley

Texas Sentencing is a one-volume sourcebook that provides a comprehensive explanation of the criminal sentencing laws, including all of the changes made by the 73rd Legislature. Texas Sentencing is the most reliable authority on sentencing law. It now available for a 20% discount to members of TCDLA.

T o p i c s include:

State Jail Felonies Punishment Evidence New Intoxication Offenses Community Supelvision Expunction Collateral Consequences Parole and Good Time

Telephone:

In a 3-Ring Binder $85.00 each (rncludes over 150 pagesot forms) $68.00 with TCDLA member discount

I Unless I have checked the box below, please enter my subscription to future annual updates, which I may cancel at any time. I

NO, do not send annual updales. I understand thls bwk has less value Mhoul updates.

Flat Cloth Paperback Binding $29.50 each (Forms not lnduded) $23.60 with TCDLA member discount

POSTAGE AND HANDLING: 3-RlngBlndel $7.50 each (lor first itern) Paperback $5.00 each I I Add $.SO/ book up 10 10. A binder= Iwo books. I1 ordehg > I D boob, please call for ShlppInQ cast. I SUBTOTAL: (Including postage a handling)

SALES TAX: Multifly subtolal by .0675.

GRAND TOTAL ENCLOSED: Please make check payable to: S~ERLING P U B u m G , P.O. Box 408. Bulverdc, TX 78163. Phol~e: (210) 438-7110. Fax: (210) 438-4645.

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

I

Negotiating and Enforcing Plea Agreements: A Primer on Plea Bargaining

Under the Federal Sentencing Guidelines

I. -ON In America today, violent crime has

replaced fhe Evil Empire as the nnmber one threat to most Americans' sense of securityand personal safety. Indeed, as the importance of foreign affairs to politicians dwindles, each new session of Congress l~rings with it a new federal uinle billas politicians line up to deliver the politically popular message that they are tougher on crime than their opponents orpredecessors. Hence, the federalization of traditionalty state substantive criminal law is we11 under way. Additionally, the sometimes real and often perceived state prison revolving door simply compounds the situation.

Many people believe the solution to violent crime lies in part with a sentencing systen that incarcerates felons for long periods of time without the possibility of parole. Forthiirmsan, the Federal Sentencing Guidelines ("Guidelines") play a very significant role in today's criminal enforcement environment. Inadditiontonew federal criminal laws, current resource pooling agreenrents between state and fede~al authorities exenlplify the Guidelines* significance. For example, the United States Atto~ney's Office for theNorthern Districtof Texascn~rently hasanattorney on "loan" from the Texas Attorney General's Office to prosecute individuals in federal court. These amngements w11l proliferate as the scope of fecleral criminal law continues to expand.

The continuing federalization of state criminal law requires that state criminal defense attorneys fanliliarize themselves with the Guidelines and the practical and legal strategieb for negotiating and enforcing plea agreenlents under chis harsh and mechanistic guideline system This article assumes a general knowledge of the Guidelines. Part I of this two-pan series discusses some of the issues defense counsel should consider when negotiating a plea

b y M. Todd We&

agreement under the Guidelines. Part I1 of the series will discus how toenforce the plea agreement once it has been reached.

pre6nideline senten&ngs, gathering and characlerizing sentence-related information early in the life of the case is vital. Courts have linuted discretion in imposing a sentence under the Guidelines. Thus, "[iln a guidelines system, whoever controls the relevant Facts and charges controls thesentence.'" Although the prosecutor ultimately controls the presentation of facts and structure of the indictment, factually knowledgeable and proactive defense counsel can significantly impact this plocess.

"The continuing federalization of state criminal law requires that state criminal defense attornttys familiarize themselves with the Guidelines and the bracticalandlegalstrategies for negotiating and enforcing plea agreements under this harsh and mechanistic gz~ideline system."

The Guidelines' premium on self- .eporting and cooperation forces munsel to ascertain as Inany facts as mssible in the initial srages of a case. n~is fact-gathering process enables :otmsel to nlake the crucial decision of vhether or not to cooperate and fully Hsdose all relevant informarion, or vhether to stonewall the government ~ n d prepare for an extended battle.

In corporate criminal investigations, fact gathering and the decision of whether to cooperate becomes more complicated. Alnlost invariably the interests of the corporation and its employees, whomaybe targets,present a dilemma to counsel. Thus, at the outset of any criminal investigation, corporate counsel must do several things:

Clearly delineate whether the corporation or one or more employees are the "client;"

Determinewhether any individuals need separate connsel;

Gather information; Initiate and control the dicedon

and scope of an internal corporate investigation;

Take a proactive role in any governmental investigation;'

Decide whether to enter into a joint defense agreement between the corporation and the employees? and

Protect the attorney-client privilege and any other relevant privileges or protections.

Early in the life of a case, defense counsel must estimate the guideline range that is likely to be applicable and identify potential areas of dispute in the guideline calculation. W~thout this knuwledge, defense counsel CaMOt adequatefyassess md develop a strategy for handling his or her client's situation. Depending on the case, defense counsel's sole sttategy nlay be to avail his or her client of every possible downward depaltnre, while h others, the strategy might be to refuse to coopelate with the government androll the dice at trial.

The Guidelines' emphasis on cooperation often pressures defense counsel into making the decisim to cooperate prematurely. Such early cooperation on the belief that Y have nothing to hidev can prove disastrous.

- - - -

VOICE FOR THE DEFENSE

Thus, if at all possible, defense counsel should complete his or her own legal analysis and factual investigation prior to making any decision to cooperate.

In most cases, the decision to cooperate almost necessarily indudes the decision to plea. The decision to plead guilty to a limited number of counts prior to indictment has the potentiai to reduce relevant conduct only to those counts. Another reason to plea is the fear that as the investigation continues, more damaging relevant conductwill be discovered. Although it is not certain, the governnlent may discontinue its investigation after aplea agreement is negotiated. In addition, a pre-indictment plea may afford a target the most cooperation points available, and thus reduce his or her sentence.

Federal Rule of Criminal Procedure ll(e) governs the conduct of the govelnment and the defendant ducmg plea negotiations. Pursuant to Rule IKeXl), a defendant may plead guilty to the charged offense or to a lesser or related offense. In such a case, the prosecutormay doanyof the following

Move for disn~issal of othercharges; Make a nonbinding sentence

reconunendat~on to the court; *Agree not to oppose the defendant's

request fol a particular sentence; or Agree that a specific sentence is

appropriate for the disposition of the case. Furthermore, rhe Federal Rules of Criminal Procedure and the Federal Rules of Evidence generally provide that statements made during the course of plea negotiations are inadmiss~ble at trial against the defendant who made them.'

Once the defendant and the prosecution reach a plea agreement, however, the safeguards against adnlissjbility of statements made in the course of plea bargaining no longer app1y.l For example, in UnitedStates v. Totunset7d,6 the defendant and the government reached a plea agreement whereby the defendant agreed to cooperate with the FBI in return for the governn~ent's p~umise to seek only a ten year sentence. After reaching this agreement, the defendant confessed to d ~ u g trafficking, apparently refused to continue to cooperate, and was

consequently indicted. At trial, the defendant moved ro suppress his confession pursuant to Rule Il(e)(b). The trial judge overmled the motion and the defendant was convicted. On appeal, the Sixth Circuit noted that the district court explicitly found that the defendant did not confess until after he hadaccepted the pleaagreement 4t that time, pleadiscussions hadended and a plea agreement had becn formed? 4ccordingly, the Sixth Circuit held that the confession was admissible because Rule Il(eX6I doesnot protectstatenlents made after plea negot~ations have zonc1uded.g

In contrast, if a defendant testifies nconsistendy with statements made furingplea discussions, thegovemnent :annot impeach the defendant with b s ~r her prior inconsistent statements. In Vnitc?d Stcztes v. Acosta-Bal1nrd0,'~ the Iefendant stated during plea egot ti at ions that he knew an individual vas transporting cocaine from Arizona. The defendant did not enter a plea Iargain, however, and at trial he denied nakingany such statement. Inresponse, he government called a detective who vaspresentduring the pleanegotiations o impeach the defendant. On appeal ?om his conviction, the defendant lrgued that the trial coort erred in tdmitting the detective's testimony Iecause the defendant made the ,tatemen@ duringpleanegotiatimsand hus were inadmissible under Rule l(e)(O. The Tenth Circuit agreed and leld that the legislative histoty of Rule 1 demonstrated Congress' explicit

ntention to preclude the use of tatements made in plea negotiations or impeachment purposes. The court, herefore, reversed the defendant's onvictions."

N. CHARGE BARGAINING ADN AGREEMENTS

A. Charge Baraaining Amid concern over the harshness of

certain drugsentences, Attorney General JanetEenorecentlysigneda "bluesheet" amendment to the "principles of federal prosecution" contamed in §§ 9-27.000 in the United States Attorneys Manual. The blue sheet affects the "Thornburg Memorandum" which basically prohibited charge bargainingand forced thegovemmenttoprosecutea defendant on the most serious charge. In contrast, the Reno blue sheet states in park

Itshould beenlphasizedthat charging decisions in plea agreements should reflect adherence to the sentencing guidelines. However, a faithful and honest application of the sentencing guidelines is not inconlpatible with selecting charges or entering into plea agreements on the basis of an mdividuahed assessment of the extent to whichparticularchargesfit thespecific circumstances ofthe case, areconsistcnt with the putpose of the federal crinlinal code,andmaximizetheimpact offederal resources on crime.

Accordingly, the Reno blne sheet specif~cally authorizes charge bargaining. At the current time, however, it appears that charge bargainingwillbe limited to drug-related offenses and will not cross over into other areas.

B. Aereements A charge agreement is an agleement

thatthegovernmentwiUmoVe todismiss other charges in exchange for the defendant's plea of guilty to a given charge.lz In order to beacceptedby the court, the Guidelines provide that a charge agreement must reflect the seriousness of the actual offense

M.'l'odtl Welty is z i $qndualc of Wcst 'L'exas State Ilniversity (U.A., mc~gnrc cilni i<lft& and Soutlian Metl~odist Ilnivsrsity Scl~oul of Law U.D., cunr k i d e ) when: he wns a nicmlwrof lile Orderof tlie g)il. Todd wasnls~ leading Articles Editor for thaSouihern hlell~~dibt University law Kevic!w awl tile Joum~l of Air U w am1 Cnrnmer'c:. l le isdsn a Cxrtified I'ublic Accountant and a olrmlxr of the Dallas Chapter and.'l'exas Socit.ly of

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beha~ior . '~ if pursuant to a plea agreement a prosecutor agrees to drop charges, the court must look at the relationship between the charges dropped and the charges to which the defendant pleads guilty. If the plea agreenlent provides that the dismissal of charges is contingent on acceptance of the plea by the court, the dismissed charges are treated as relevant conduct for purposes of examining whether the sentencing range reflects the actual offense bel~avior.'~ Thus, courts may consider dismissed charges in determining the Guideline range or as a basis for departure. If the dismissal of charges is not contingent on the court accepting the plea agreement, however, the Guidelines exclude the dismissed charges from sentence determination in most cases.15

In addition to the consideration of disnlissed chal-ges as relevant conduct, defense counsel must still guard against other Guideline provisions that could cause the plea to be an empty bargain. One such provision is the court's consideration of "actual condwt." If actual conduct is made pan of the record during the plea process eitherby stipulation or othenvise, the court may considcr actual conduct even if it does not constitute anelement of the offen~e?~ Furthermore, if the plea agreement includes a stipulation of facts "specifically establishing" that the defendant conimitted a more serious or additional offense, the Guidelines direct the court to calculate the sentence as if the defendant had been convicted of those offenses."

In general, most defendants are advantaged by limiting the charges to which a plea will be entered. Limiting the charges also reduces civil exposure in parallel governmental enforcement actions or related private lawsuits. In most cases, however, a guilty plea collaterally estops a defendant from challenging civil liability. Thus, the scope of a plea to criminal charges may determine the scope of a defendant's civil exposure. For this reason, defendants and their counsel should attempt to reach a global settlement at the time a plea agreement is negotiated. If counsel can negotiate a settlement in related civil actions, this settlement can be presented to the court as completed agreements to satisfy the restitution and disgorgement requirements of the Guidelines.

C. RecommendationAereements A recommendation agreement is an

agreement that the prosecution will recommend a sentence to the court, or will not oppose the defendant's requested sentence.18 The Guidelines provide that a court may accept a recommendation only if the sentence is within the applicable Guideline range or departs therefrom for "justifiable rea~ons."'~ The defendant has no right to withdraw the plea if the court imposes a sentence exceeding the recom- ~nentlation.~

In general, the prosecution does not have to "enthusiastically" defend its sentencingrecommendations, although it is required to abide by the specific terms of the agreement.21 If a plea agreement provides that the prosecution is not to recommend a specific sentence, coum generally do not preclude the government fro111 making additional recomnendations for punishnienf as long as the government does not recommend a specific sentence?"

D. Specific Sentence Aereements A specific sentence agreenlent is an

agreement calling for the imposition of a specific guideline or sentence." The court may accept the sentence agreement ifitfallswithin theapplicable guideline range or departs therefrom for justifiable r e a s ~ n s . ~ If the court rejects the plea agreement, thedefendant is entitled to its withdrawal?'

E. Fact Stivulations The Guideline policy statements

pennit the prosecu~on and defense to snbnlit a written stipulation of facts relevant to sentencing at the same time the parties submit the plea agreement. The stipulations should set forth the relevant facts and circumstances of the actual offense and should not contain n~isleadingfacts.~ Thesentencingcourt may disregard factual stipulations and rely on the presentencing report for determining relevant conduct.27 A ca~efully and fairly preparedstipulation, however, provides the court with little incentive to disregard the stipulation and rely on the presentence report exclusively. In stipulaung to facts, defense counsel must be very careful to avoid making out the elements of a moreserious offense or from collaterally estopping a client from challenging liability in the civil arena.

Settled law PI-ovides that a court may adjust a sentence based on conduct for which a defendant has not been

convicted, provided the government proves the conduct by a prepondennce of the evidence. Defense counsel, therefore, should seek to limit his orher client's exposure by negotiating stipulations regarding adjustments and/ or depaltures from the base offense level. Some of the stipulations defense counsel should consider negotiating include:

A stipulation prohibiting the government from takinga position with respect to the tern1 of incarceration, or anlonnt of restitution or a fine.

As a part of any plea agreement, defense counsel should attempt to negotiate a joint recomniendation designating the facility in which the defendant will serve time.M . Astipulation that the government is not aware of, nor will it recommend, any enhancements pursuant to the Guidelines.

A stipulation requiring the government to I-ecornmend the lower end of the proper guideline range for the offense after considering any available downward adjustnlents or for a sentence of probation when the Guidelines so permit;

A reduction of two or three levels below the otherwise applicable Guideline for "acceptance of ~esponsibility;"~

An applicable downward departure based o n cooperation with the Government under g 5K; . An agreement as to the defendant's criminal history categoiy;

A stipulation that the defendant did notuse any specialskills that significantly facilitated the commissionof theoffense;

Astipulation thatthedefendant'rxras aminor participant in the offense or that his or her offense did not involve more than minimal planning;

A stipulation that the defendant's failing health warrants a downward deparmre;

A stipulation that the defendant's extraordinary family ties and responsibilities warrant a downward departure under g 5H1.6;

A stipulation that based on all relevant conduct, and not just offense conduct, the defendant was not an organizer, manager or leader under § 3Bl.l;

A stipulation that the defendant's offense did not involve "an abuse of trust" under 4 3B1.3;

A stipulation that the defendant's

VOICE F O R THE D E F E N S E

offense did not have an extreme impact on a victim under $3 5K2.3 and 5K2.8;

A stipulation that multiple offenses are "closely related" and should be grouped under § 3D1.2;

A stipulation as to the amount of loss;

A stipulation that the government will not challenge the defendant's right to file bankruptcy, although it may contest the dischargeability of any fine or restitution orderedby the sentencing court; and

A stipulation that the defendant did not obstruct justice.30

cooperation favorably in the hope of reducing tlieit sentences. Despite this fact, courts look to the prosecutors to assess a defendant's cooperation." It1 anefforttoobtaina domwarddeparmre for substantial assistance, the plea agreement should provide that the prosecutionmustmove for adownward departureatsentencing. Inalllikelihood, the plosecutionwill attemptto condition such a motion on a finding, made in the prosecution's sole discretion, that the defendant coopelated. Defense counsel should resist language to that effect and negotiate language indicating that the government will not move for a downward departure if, and only if, thereisa courtfindig that thedefendant didnotcooperate. Altematively,defense counsel should be able to negotiate languagethatthe prosecutionmust make a "reasonable determination'' that the defendant did not cooperate.

Guideline g 1B1.8 provides that if a defendantagrees to provideinformation aspart of a cooperation agreement, and the government agrees that such informationwill not be used against the defendant, then the information may not be used in calculating the Guideline range, except as provided in the agreement." CounselshouldspecificaUy state in writing that $ 1B1.8 is being relied upon before entering into any cooperation apenlent. Furthermore, cooperation agreements should contain a stipulation that any seK-incriminating evidence revealed while providing assistance, and any derivative evidence obtained therefrom, cannot be used against the defendant if the plea agreement falls through, and that such evidence cannot be used by the probation officer in the presentence report or by the judge at sentencmg.

The agreement should also bar the use or disclosure of self-incriminating evidence in a subsequent trial or proceeding brought in the same or otha district.

The restrictions on self-incrimination contained in 9 1B1.8 apply even when the defendant provides self- incriminating evidence to the probation officer preparing the presentence report subsequent to having entered into the cooperation agreement. For example, in UnitedSfrrles u. Fant,"the defendant entered into a cooperation agreement prohibiting the use of incriminating evidence pursuantto Guidelines 1B1.8. Subsequently, the defendant gave testimony to FBI agents, acting in the capacity of probation officers, in two separate interviews. These interviews provided the basis of the presentence reports which were supplied to the court. The presentence report recommended an enhancement for obstruction of justice based on mformation that the defendant hadgiven the FBI agents during the interviews. The court relied on the statements in this presentencingreportwhenitapplied the two-level enhancement for obstruction of justice. On appeal, the defendant claimed that thegovernment breached the plea agreement by using the infomlation provided pursuant to Guideline $ lB1.8. In vacating the sentence, the Fourth Circuit held that the restrictions set out in p lB1.8 applies to statements made to probationofficers which are later incorporated into presentencing reports."

Cooperation agreements should also take fines and restitution into consideration. rn most cases, either a fine or restitution is required as part of the sentence. In addition, the amount of loss plays a significant role in the length of a sentence. Defense counsel, therefore, shouldnegotiatefora definite anlount of fine, restitutionor loss ss part of a cooperation or plea agreement. At the time a defendant enters into a cooperation agreement with the prosecution, some facts that influence this amount may be uncertain. Accordingly, defense counsel should obtain a stipulation as to the anlount based on the facts known at that time, and that facts discovered after entering into the cooperation agreement may not be used in calculating the fine, restitution or loss, regardless of their source.

The protections provided in g 1B1.8 do not prevent the use of information known to the government before enteringinto thecooperationagreement or information relatingto the defendant's prior criminal record. Additionally, informationobtainedfmmthedefendant pursuant to the cooperation agreement may be used in a perjury prosecutionor in the event the defendant breaches the agreement.

G. Withdrawal Aareements If a c o w rejects a plea agreement

relating to dismissal of charges or providing for a specified sentence, the Guidelines provide that the defendant has the opportunity to v i t h d r ~ the plea." The defendant bas no such opportunity, however, when a court declines to follow a nonbinding recommendation or when the government does not move for downward departure. Accordingly, counselshouldattempt to carefiilly draft the plea agreement in such a way that it provides the defendant a right to withdraw the plea if the sentence determined by the judge exceeds the sentence recommendation or the government fails to move fordownward depmre. V. PRE-PLEA RULINGS

Before entering a plea, it is vital that defense counsel and the client know with some degree of certaintywhat the sentencingmnge will be. Given the fact thatthesentencing wurthas asubstantial amount of discretion indeparting either upward or downward from the base Guideline range, a defendant can face a great amount of uncertainty as to the length of his or her sentence when he or she formally enters his or her plea.

In state practice, judges frequently involve themselves directly in plea negotiations, thereby eliminating much of this uncertainty. On the Federal level, however, judges are strictly prohibited fromparticipatinginpleanegotiations.~ In UnitedSt~ztmu.MiJes~~ theF&thCircuit reiterated this bright-line rule. The defendants in this case were charged with conspiracy to commit robbery, fourcountsofrobberyaffectinginterstate commerce, and four counts of using a firearm in committing a crime of violence. Through plea agreements, the defendants pled guilty to the conspiracyto conunitrobbery, onecount ofrobberyafTectinginterstateconmerce, and one count of using a firearm in conunitting a crime of violence. The


district court, however, rejected the defendants' plea agreements because he did not believe the pleas reflected theseriousnessof the crimes. Following the discussion set forth below, the defendants entered into new plea agreements and were sentenced to approximately sixty years each. On appeal, the defendants complained of the foltowing colloquy that occurred when the judge rejected the pleas:

UNlTED STATES ATTOmEY: Can I ask a question? And I apologize, if it is an inappropriate question.

THE COURT: Yes. UNITED STATES ATTORNEY: Is there

anything short of a plea on all of the [fwearn~ counts1 the court might consider?

THE COURT: I think your initial comment is correct -

UNITED STATES ATTORNEY: Thank you.

THE COURT: - thxt it would be inappropriate for nle to say what I would or would not accept,

I will say this: If I was satisfied that these people hkely would never get out of prison I w011ld feel more comfortable.

UNITED STATES ATTORNEY: And the comment I had, Your Honor, is simply I don'twant to continuewasring the coult's time if we were to set a date for a plea next F~iday with additional time, if we are just going to be wasting the court's time.

'SHE COURT: Well, it would just seen1 to me that in the Gustus case, if he had another 20 years to serve, and that in the Miles case, if he had another 40 years to sewe beyond what is not contemplated - or that wasn't contenlplated - that that could serve the objectives that1 think wereintended to he served.

On appeal, the government dtsputed the defendants' claim that the court violated the prohibition on participating in plea negotiations. In support of its contention, the government cited the following Advisory Committee notes to the amendment that added subsection (e)(l) to Rule 11:

"The amendment makes clear that the judge should not participate in plea discussions lc:ding ton agrccnsnt. It is co~vcmnlntetl th;~t thc iudw mav , - participate in such discussions as may occur when the plea agreement is disclosed in open court." In rejectmg thegovernment's claim, the Fifth Circuit held that Rule 11 requires that the district court explore a plea

agreement once disclosed inopencourt; however, it does not license discussion of a hypothetical agreement that the court may prefer. Accordingly, theFifth Circuit held that the strict rule against judicial participation calculated to lead to a plea agreement must remain inflexible and reversed the defendants' convictions and vacated their sentences."

One method of obtaining some level of assurance as to the length ofsentence priorto formally enteringapleainvolves an informal, in crrmemconference with the judge regardingthe plea agreement. During this conference, defense counsel should go through the terms of the plea agreement with the judge and set forth the defendant's calculation of the Guideline sentence. In what amounts m negotiationoverthe dispositionof the case and not the t m ~ of the plea agreement, defense counsel politely informs the judge that if he or she plans on departing from the defendant's calculation of the sentence, a lengthy sentencing hearing full of objections preserving errors for appeal will ensue. Often, judges will concur with a defendant's sentence calculation if it appears that the defendant will not appeal. VI. CONCLUSION

Plea bargaining under the Federal Sentencing Guidelinespresentsdefense counsel with a wide range of issues not present under most state criminal sentencing systems. The continuing federalization of state criminal law iequkes that state criminal defense counsel familiarize themselves with the practical and legal strategies for negotiating and enforcing plea agreements under the Federal Sentencing Guidelines. Part I of this two-part series attempts to highlight some of theissues relevant to negotiating a plea agreement under the Guidelines. Part 11 of the series will discuss how to enforce the plea agreement once it has been negotiated

ENDNOTES

1. Schulhofer and Nagel, "Plea Bargaining Under the Federal Sentenung Guidelines," 3 Fed. Sent Rep. 218,219 (1991). 2. Almost without question, defense counsel'sfirst priorityduring a governmental investigation is to try to avoid indictment completely. Incases inwhichcivilremedies are available to the government, a target

may be able to amid indictment by entering into a consent order whereby the target agrees to pay a fine. In this sense, the rigid~tyofthe Guidelinesallowsbothparties to weigh the fmancial impdct of a possible ind~ctment. 3. The dec~sion to enter into a joint defense agreement generally should only foilow a decision not to cooperate because of the potential negative impact under the Guidelines. Such an agreement can negatively impact on a reduction for cooperation to the extent that it prevents a party from disclosing information. Furthermore, prosecutors may interpret a joint defense agreement as a sign that the parties have decided to fight rather than to cooperate. Consequently, prosecutors are less likely to shalare information with one or some defendants since they know the information will be shared with the others. 4. Fed. R Crim. P. ll(e)(6): Fed. R. Evid 410. Specifically, the following statements are inadmissible: .Statements made in the course of proceedings under Fed. R. Crim P. 11; .Statements made in the course of plea negotiations that do not result in a guilty plea; and *Statements that result in a guilty plea that is later withdrawn. 5. United States u. Knight, 867 F.2d 1285, 1288 (11th Cir), ceri. denied, 493 U S 846 (1989); UnitedStntesu. SffrIing, 571P 2d708, 731 (Zdcir.), Zen, datiod, 439U.S. 824(1978). 6. United States u. Townsend, No. 92-6719, 1993 us. App. LEXIS 31934 (6th Cir. Dec. 6, 1993). 7 Id. 8. rd. 9. Id.; accord, UnitedStaferu. MWts, No. 92- 5923, 1993 US. App. L m S 18553 (6th Cir. luly 14, 1993). Likewise, defendant's statement made to government agents who are not attorneys may be admissible at trial. See Unfted States u. seixfich, 776 P.2d 412, 421 (3d Cir. 1985) (statements were not inadmissible under Rule 1Xe) since the defendant could not have reasonably believed that the person to whom the statements were made was authorized to plea bargain), ceH. denied. 484 US. 1017 (1988); UnitedStates u. Jotgenrsetz, 871 P Zd 725, 730 (8th Cir. 1989) (a defendant's statements made to the FBI at its offkes while the defendant was not in mstody were not part of plea bargaining and thus were not inadmlss~ble under Ride IKe)). rheadvisorycommittee notesto Rule ll(e), however, stress that statements made to nonattorney government agents are not inevitably admissible "especially when the

19

V O I C E FOR T H E DEFENSE

agents purport to have authurIty m bargain. "In Unltedsfatesu. Robertson, 582 P.2d 1356 (5th Cir. 1978) (en banc), the PBJt Circuit articulated a "totality of objective eircwmstances"test tuguvemtheada&sibility of a defendant's statements to nonattorney government agents. Id. at 1366; 6 Uifited States 0. O'Brlet, 618 F.2d 1234, 1240-41 Clth Cir.) (a recorded conwrsation between the defendant and an FBI informant about the possibility of plea bargaiaing was admisalble because the defendant had no subjective expedatlon of negotiiinga plea), cen. denied, 449 U.S. 8% (1980). Depending on tile circumstances, a prior plea agreement may k admissible when it is introdumd ed tomonstrate or attack a wilness's credibility. In United Stntes u. Damis, 786F.2d 1029,1047(11t11Cir. 19sli>, dert. daned, 481 73.9. 1037 (17871, the Elwent11 Circuit held that the admission of a related plea agreement and an accurate comment thereon was not reversible error when it was used to bolster a wimcss's credibility. lo. 8 P.3d 1532 (10th Cir. 193). 11. Id.; accord, LRlitedStates u. Wood, 879 P.2d 727 (D.C. Cir. 1789); ses dso, United States~.Aferrnnflito,798 F.2d 1452 (9th Cir. 1993) (holding that Rule 1Ke) prolubitsuse of staten~enfs made during plea discussions forimpeachment andthata defendant cannot waive this prohibition). 12 Fed. R. Crimn. 1'. 11 (e)(l)VT) . 13. U.S.S.G. g 631.2. 14. U.S.S.G. § 6131.2, Commentary. 15. U3.S.G. g 6~1.2, Commentary. 16. US.S G. 5 6B1.4, Commentary. 17. U.S.S.G. Ej 1B12. 18. Fed. R. Crirn. 12.. Rule llleXll(W>. 17. U.S.S.G. §6B1.2(b)-(c). 20. Fed. R. Crim P. ll(e)(lXB). 21. SqUnltedStmiesu. Benchimdd,471 U.S. 453,455-56 (1985); Ultitedstafes u. RamOS, 810 F.2d 308, 313-14 Clst Clr. 1987) (prasecution did not breach its promise to recommend light sentence when the pmsecutor commented negatively on tlut sentencing report because proseswionwxs under no obligation to advocate the recommended sentence); United Sf& u. Huddestoa, 929 F2d 1030, 103-2 15th Cir. 1991) @he prosecution did not breach its promise to recommend a particular sentence when it made the sentencing reconunendation but also discussed the defendant$ dangerousness), cf UfaitedSfnfes u. Can&, 760 F.2d 263, 269-71 (1st Cir. T998 (the prosecution breached itsprom.se to remmmend a specified sentence when the prosecutof paid only "lip service" to the plea agreementbut recommendedalengthy

sentence instead of affirmatively recommend~ngthesentencespecifiedinthe plea agreemeno. 22. see rnmedstat~io u. we~nbae, 852 P.&I 681,687-86 (2d Cir. 1788) (at the sentencing hearing, the guvernment d ~ d not violate the plea agreement nut to make A qxcific sentence recommendation by vividly describingthedefendant'soffemes~, U~tiEad States u Moom 331 F.2d 245, 250 C4th Cir. 1990 (the pmecution d ~ d not breach the pleaagreement not lorecmmenclaspecific sentence by making remarks cakntated to induce the court to issue a severe sentence), cat. dWe4 112 S.Ct 171 (1931); Unfnd States u. Watt, 724 P.W 714, 717 (8th Cir. 1984) (the prusecntion did not breach the plea agreement not u, recommendaspecific sentencx byopposing&ed&ndantf~nlotion to reduce the sentence); Duted States U. Clark, 781 F.2d 730,731-3.3 (9th Cir. 1988 tthe prosecution did not breach the plea apemen1 not to ~@commPnd a specific sentence by recommending that the defendant serve the longest possible sentence). 23. Fed. R. Crim. P. IICeXlXO; U.S.S.G. $ 6Bl.ZCc). 24. US $G. 5 6Bl Z(c). 25. Fed. R. Crim. P. llCe)C@; U.S$.G. 5 6B1.4 26. U.S.S.G.$6B1.47$. 27. U.S.S.G. 56B1.4Cd). 28. Pederal prosecutors rarely cornment positively about a defendant Zhus, a joint recommendation may have positive impact on the defendant3 ultimate destination. If defense counsel is unable to negotiate a facility recommendation with the prosecution,cuunselshonlda~emptlnl~ave the judge fill out and file Form AO-235. PormAO-235containsa~pacefornotingthe judge's recommendation as to where the defendant should be confined and the reasons for the recommendation. The Federal Bureau of Prisons generally takes notice of these forms since they are rare. If the judge hesitates to use the form, counsel should auempe to obtain the judge's verbal recommendation on the record as to which facility the defendant should be confined In addition to getting a joint recommendation with the prosecution and ~~osstbly a Form AO-235 horn the bdge, it is exhemely important that defense counsel correct any Inaccurate or ~rrelevant information in the PresentenceInvestigation andRepMt("PSI4. nle Bureau of Prisons relies heavily on the PSI and makes nwst facility designations based on this document. Accordingly, it is extremely important that the X'S$ for a defendant who pled guilty to money

laundering does not contain inaccurate w irfelevam statements ahout the defendant's allq7edlristo~ofaggressivesexual hehuvjor or as a pedophile. Obviously, such prejudicial infomationhasa negativeimpact as towhiihfacilitythedefrndant isconfined. 29. Since a reduction ror acceptance of responsibiliiy isnnt automaticnp pleading guilty, and it is highly unllkely following a pry vedict, it is criticai that defense counsel negotiate this Sipnlation. 30. U.3.S.G 5 3C1.1. 31. [email protected], 896P.2d710, 711 (2dCir.). cert.&~ial, 111 S.Ct 433(1W ("evaluation of defendant's e f h t I f o ~ purposes of§ 5K1.11 liesin the discretionof the prosecutor and may be reviewed only on thesllowingofprosecutorialmiscon~t or bad faith"); UnffedSfates v. H~dclln, 878 F.2d 89,94 (2d Cir. 19893, cetf. akflfed, 493 US. la46 (1970) Cwhether a defendantk uropecltlon has risen to the Level of 'substantial assistance' to the government [under g 5Kl.11 is self-evidently a question that the prosecution i? uniquely fit to resolve"). 32 U.$S.G. 5 131.8. 33. UnirerlSfatesu. Fa14 974 F.2d 559 14th Cir. 1792). 34. Id.at 564. Likewise, in UnitedSfatesu. A@&, 963~.2d 72,7574 (5rh Cir. 1992h the plea agreement precluded prosecution for "activities that occurred or arose out of [the defendant's] participation in the crimes charged.. . thatareknown to thegovernment at Wtime." Despitethisfact, thepresentence report contained information that the defendant had pmvided to the probation oscer in reliance on rhe plea agreement. Since the sentencing court relied on this infonnation in imposfng the sentenre, the Piftb Cmrcuit vacated the senrence and heId that under the terms of the agreement, the self-incriminating evidence provided to the probationofficerin reliance onthe pleanxay not k used in sentencing. 35. u.s.s.G.§~BI.~. 36. Fed. R. Crim. 1'. Il(e1. 37. United Strrtes v. Mlh. 1993 3.6. App. LEXIS 33901 (5th Cir. Dec. 27, 1993). 38. Id. !n Uizifeds~amu. Carbifr, 996 P.2d 1132 (11th Cir. 1773), durillg a status conferenceand change of pka hearing, the idge stated that defendants who go to trial before him get a fair trial, and if convicted, get a Fairsentence, -fairly high." Onappeal, the Eleventh Circuit held that this statement was an improper partidpation in the plea neeotjations in violation of Rule 11W. Accordingly, the Eleventh Circuit reversed and remanded thecase toadifferent judgeem


Trial Evidence Guilflnnocence: Special Problems in Evidence Penalty Phase: Special Problems in Evidence

by F,R. 'BuckN Files

Part 9

[ADDENDUM]

I. INTRODUCTION The chief curse in paper writmng is

that the courts continue to crank out opinions after the deadline for your paper has passed

A Westlaw search revealed no new cases on our topic out of the 5th Circuit and no cases out of the Texas Appellate Coum on the Texas Rules of Crinllnal Evidence; however, the Cou~t of Crinlinal Appeals has handed down six op~nions in capital cases since February 1, 1993. Three of these opinions are significant Two involve casiswhichwere reversed and one whichwas affumed enunciating a new rule 11. REVERSAIS OF TEXAS CAPITAL CASES: FEBRUARY, 1993

A. Comment Since Febn~ary 1, 1993, two more

capital cases have been reversed by the Couit of Criminal Appeals. One of the cases was reversed on another "less than sophisticated" issue; another was ~ e v e ~ s e d because of the failure of the state- through n o fault of the prosecuto~s-to disclose exculpatory material to the defendant.

In Cbappell v. State- S.W.2d -, 1993 WL 19975 CTex.Cr.App. Feb. 3, 19931, the trial court improvidently granted the State's motion for a second shuffle

In li3C Parte Andmu Lee MitcheN, _ S W.2d _, 1993 \VL 28849 (Tex.Cr.App. Feb. 10, 19931, the Court granted petitioner's application for habeas corpus because of the failure of law enforcement officers to disclose exculpatory matenal to the defendant's lawyer prior to trial. 1. CHAPPELZ V. STATE, - S. W.2d -,

1993 WL 19975 (Tex.Cr.App Feb. 3,

1993) THE OFFENSE: Capital murder [Deathl THE PROBLEM: Too many

shuffles. THE FACTS After the trial court had

granted Appellant's motion to shuffle thevenire, the Statepresenteditsmotion to shuffle which the trial court granted over Appellant's objection.

RESULT: Reversed and remanded to the trial court.

WHY: InFonfenotv.State, 379S.W.2d 334 (Tex.Cr.App. 19641, the Court held that a second jury shuffle was not authorized:

"This bill of exception complains of the action of the Court, over objection and exception of Defendant, after completion of the jury list under the procedure of Atticles 626, 627 and 628 VACCP at the demand of the parties hereto, in permitting them, upon demand by thestate's counsel, a second shuffle, not authorized by law."

* * * [Note: Footnote 6 of the opinion

states: "Upon the enactment of the Code of Criminal Procedure, Articles 526 to 627, and 628 were repealed and replaced by Acticle 35:ll"l

I f *

In Jones u. State, 833 S.W.2d 146 :Tex.Cr.App. 192), the Court pointed 3ut that a Defendant does not have the nght "in all cases and under any :ircumstances, to reshuffle after the State has requested and obtained a 9huffle under Article 35.11."

The Court held that only one shuffle IS authorized under Article 35.11 and that the trial court erred in granting the state's request for a second shume.

* *. [Note: The State contended that the

Zourt should address "a harm analysis" ~mderTex.R.App.P. 81(b)(2). The Court In Fo,z&izot, stcpra, had held "no injury need be shown in order to warrant a

reversal." The Court refused to require a barm analysis.1

* * . 2. EXPARlEANDREIVLEEmCHELL,

- S.\V.Zd-, 1993WL28849CTex.Cr.App. Feb. 10,1333) [Original opinion: Mitchell v. Stnte, 650 S.\V.Zd 801 (Tex.Cr.App. 1 QRZIl

tell anybody about the exculpatory evidence.

THE FACTS: In the trial court, the State had relied upon accomplice testimony. According t o the accomplices, the victim was murdered atapproximately 9:oop.m. Tkey testiFed that Applicant and the accomplices had first been with the victin~ a t approximately 8:30 p.m.; that Applicant had shot the victim at approximately 900 p.m., and that Applicant and the

pa. "Buck" Plfes, jr. is a charter member of the Texas Criminal Defense Lawyers Association. He is boarti ~Wti- fied in criminal law and is ashareltolder in the firm of Bain, ~lles, Allen and Woahen of Tyler, Texw


acconlplices disposed of some of the property and arrived at the Savoy Club in Alfredia Motel in Tyler, Texas, at approximately 10:00 p.m.

At the habeas proceeding, RalphEast, a State Game Warden in Smith County, Texas, at the time ofthe murder, testified that between 10:00 p.m. and midnight he had passed the scene of the murder where the victim was working and had seena person sitting behind the counter. East had been unable to identify the individual who was sitting behind the counter. The next inorning, East and Justice of the Peace Guthrie were togetherwhen they learned ofthedeath of the victim. They went to the scene and talked with a deputy sheriff who was handling the investigation. At the evidentia~y heal-ing, East testified "that he felt confident that he told Deputy Woodhull at the scene what he had seen the night before 'nor did I talk to anybody except for Woody \Voodhull. I feelvery confident that I told him what time I was by there the night--on the 26th.' At that time, no one requested that East file a written report regarding his observations o n the night of the 26th." The prosecutor was unaware of East's involvement as a witness.

At the evidentiary hearing, Kelly Stl-oud, a Deputy SherifFinSmnith County at the time of the murder, testified that at approxinlately 10:00 p.m. on the night of the murder he was dispatched to Troup. At approximately 12:15 a.m. on the following morning he noticed the following: "As I drove Noflh bound on 110, I noticed the fireworks stand was still open and observed onesubject sitting inside the stand on the North end but did not notice anything unusual about it." Stroud alsoobserved that "the man was sitting in a chair, that he was alive Cas far as I coulcl tell'), and that he had a plaid shirt on." On the following morning, when helearnedof themurder, Stroutl had prepared an offense report "because he thought what he had seen was inlportant. 'I would probably have hmed it straight into C.I.D., Criminal Investigation."'

Once again, the prosecutor who tried the case "did not ~ecall being given, or seeing, Stroud's statement at any time."

Both the prosecutor who tried the case and a prosecutor who succeeded him testified at the evidentiary hearing that if they had seen Stroud's statement prior to trial they would have probably given it to Applicant's trial counsel.

Interestingly enough, it appears that neither East's nor Stroud's participation in the investigation of the case was known to any prosecutor until they were required by the District Court before the evidentiary hearing "to exanune the Sheriffs Office case files to search for exculpatory evidence."

RESULT: Judgment of the trial coult vacated; Applicant remanded to the custody of the Smith County Sheriff to answer the inclictn~ent. \= The Court found that the

statements of East and Stroud were concealed by agents of the State.

In resolving the issues of whether the statements of Stroud and East were exculpatory and material, the Court noted:

"This Court's recent decision in Thomas u. State, No. 0109, 91 [Tex.Cr.App. Oct. 28, 1992) controls resolution of this matter. This Court relies upon a three-part testto determine whether the State violated Applicant's rights to due process under the Fourteenth Amendment: (1) Has there Deen a failure to disclose evidence?; (2) [S that evidence favorable to the iccused?; and (3) Does the evidence :reate a probability sufficient to mdermine the confidence and the mtcome of the proceeding?"

The Court held that the State through ts agent, the Smith County SherifFs Xfice, failed to disclose to defense :ounsel the statements and reports of ialph East and Kelly Stroud.

On the issue of favorability, the Court itated: "The issue of favorability is :ontrolled by deciding whether the :vidence 'if disclosed and used :ffectively, ... may make the difference letween conviction and acquittal.' lhonzasu. State, supra; and UnitedStates A Bagley, 473 US. 667, at 676, 105 S.Ct. 1375 at 3380, _ L.Ed2d _ (1985). Either :xculpatory evidence or impeachment estimony can be favorable. The :vidence provided by East and Stroud :ewes both purposes." The Court held hat the evidence of East and Stroud vas exculpatory and favorable to ~pplicant. The Courtalsonoted thatthe testimonv

,f East and Stroud could have been ~ s e d as impeachment testin~ony for the ccomplices. A critical element of the xosecution was when the victim was :illed. The evidence of East and Stroud vould have been favorable to Applicant 1s impeachmnent testinlony.

As to whether or not the evidence of East and Stroud created a probability suficient to undernune the confidence and outcome of the proceedings, the Court examined the evidence of East and Stroud "in the context of the overall strength of the State's case 7T~o1nas u. Smte, i4 UnitedStateru. Bagley, 473 US. at683,105 S.Ct., at3384and UiaitedStates u. Agltn, 427 U.S. 97 at 113, 96 S.Ct. 2392, at 2402 (1976)."

The Court noted that "if a verdict is only weakly suppo~ted by the record, it is more likely to be affected by the non- disclosure of favorable evidence, such as that of East and Stroud, than if it was strongly supported." In this case, the only evidence pointing to Applicant as the person who shot and killed the victim was that of accomplices.

The Court also "considered the potentially adverse affect that non- disclosure of East and Stroud's evidence had on the defense counsel's preparation and presentation of Applicant's case."

The Court held that "it was highly probable that the failure to disclose this evidence to defense counsel, as a result of the Sheriffs Office investigator's suppression of it, hampered defense counsel's efforts to prepare a defense which would have created a reasonable doubt that the Applicant could have been at the fireworks stand at the time the acco~nplices testitledthat the murder was committed. Considering all of the above, the Court held that the failure to disclose the favorable evidence created a probability to undermine the conf~dence and the outcome of the trial.

* * * [Note: Since acconlplice testimony is

a "hot topic", it is interesting to note what the Court on direct appeal had found to be sufficient corroboration: "The independent evidence showed the accon~plices and Applicant were together shortly before and after the alleged time of the commission of the murder; this testimony placed three men in the vicinity of the fireworks stand; the bullet fragments removed from the deceasedwere fired from a .38 caliber weapon (the accomplices testified Applicant shot Wills with a .38 caliber weapon that had a tendency to misfire); a witness stated that he saw a .38 caliber handgun in Applicant's bedroom a few weeks after the murder; and themedical exanuner, Dr. Gonzales,

Co~~tinned on page 39

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

General Thoughts on Trying the "Intoxilvzer Result" DWI

Part 2

III. Use Expert Witness in DWI Trial A. I would like to b r d y discuss the

debate over whether or not to use an expert in a DWI Intoxilyzer result trial. I have used experts a number of times with a great deal of snccess Hornvet, I have also had a great deal of success where I have not used an expert. I like to breakdown theintoxilyzerresi~lt uial into three diffemtt categories for an analysis about whether or not to use an expert.

B. In cases that are .10 to.13, Imight or might not use an expert. The problem withusingan expert isthatyou heighten the importance, believability and credibility of the machine andits results. You first must ask yourself what infom~ation can I get from the State's expert. It may very well be that the State's expert will provide you with enough infarmation that you can laise a reasonable doubt niithout the use of your own expert.

Raising a reasonable doubt nrith a State's expert has even more power with a jury than using yourown expert. An example of th~s type of testimony is where you "construct thehypothetical." There are a number of different ways to aconstmct the hypothetical" and each one varies regarding the facts in your particular trial. However, all experts will tell you that given certain basic considerations, they can construct a

~hornas W, Pappas is ;m asuMatc with th(: !;cw fir111 o f Hurlcson, I'uu: & Gilxsvn, 1..1. P., in Dullas, l'c:xas. He is a memkroftho ikllas Bar Association, the Ame'rican liar Association, DallAs Criminal Defense 1;lwyers Awc;ialion O'wsidk:nt, 1993),TWLA,and NACDL. t Ie received his lxtdielor'sdegrws and J.D. degree from Southern Metllodist IJnivcrsilv.

4

by Tom Pappas

level of intoxication in terms of blood- alcohol results based upon a person's weight, sex, number of drinks they have had over a specific period of time. For example, a 150 lb. male, who has six drinks in one honr, assuming that he has the same m e of absorption and elindnationas most males in the United St:~lcs will luvc a blootl-alcohol lcvcl of . I .3 'l'llis testimony may lxvcry helpfit1 becnnsc volt (:m also estal)lisl~ thro~lal~ " the use df the intoxilyzer operatorand his manual whether or not the obtained result was higher than the result at the time of driving; lower than the blood/ alcohol results at the time of driving.

C. Such testimony is often fruitful in regard to the .I1 to .13 cases. In the cases where the blood-alooho1 result is overa .17, I rarely use an expert. Quite simply, if you have a good video, and if you have a fair and impartial jury, by constructing the hypothetical to encompass the blood alcohol results that are wer .17, the number of drinks required to achieve that blood alcohol over time quickly becomes exorbitant. If you have done a good jobinyourvoir dire to keep your jury independent, they will be much more likely to accept the evidence that they can see (the video) ovcr the cvidc&e that they do not i~nderstnnd(thc intoxilvzc:rtnacl~inu results). he example of tfIis is a 180 lb.

male, who has been arrested after five hours, the amount of drink that it will take for that person to achieve a .17 is somewhere between 14 and 15 drinks. Find a scale or measure prior to your jury Mal, and figure out what the approximate number of drinks would be to achieve the result for your client over the period of time that roughly corresponds with the face your client describes to you in your interview of the client. Voir dire your jury on how someone looks that has had 14 cltinks over three or four hours. Then, when they hear the evidence, they -will understand and see that even though there may be a machine which may have made a mistake that cannot be explained, what they see on the video simply does not correspond with the test resillt (it raises a reasonable doubt and entitles you to a verdict of not guilhl).

D. The fma1 category deals with test results that are between a .14 and 27. These are the most diicult cases to win because you are not able to explain away the machine result by differences in drinking time, driving time, and test result time, nor are you able to show that the alcohol amount consumed to ;~(:lticve such a result is so cxorhitant as to be whollvinconsistcnt with thc vitlcn. E. these are the cases

where I lean toward using an expert. Although, if you have a the four factors discussed earlier in the paper, there is a good chance that you can develop enoughfacts and raise some reasonable doubt by the State's expert to avoid the necessity of using your own expert. Everybody has their own style of uoss- examining the State's expert. However, I tend to figure out the things that are necessary for the expert to testify to that will help my case and obtain those in the initial portion of the cross examination (the hypothetical) before the expert has been impeached by my cross-examination.


P. Once I g e t t o t h e i n l p e a c h m e n t por t ion of my cross-examinat ion of the expe t t , af terreviewingal l o f t h e mater ia l I have about t h e intoxilyzermachine, its

I underlying physiological theories, as well as t h e adminis t ra t ion that we are able t o see on t h e video tape , I wi l l t h e n pick o u t t h e m o s t likely areas in which t h e m a c h i n e may have been mistaken. They may range from cer t a inunder ly ing physiological a s sumpt ions whiclich do n o t a c c u r a t e l y r e f l e c t t h e general population t o a machine cl icking or cranking o u t a resul t i n a manner tha t is s o m e w h a t inconsis tent w i t h how it has perFormed on previous occasions to t h e

PAID ADVERTISEhIENT

manner in which a person is adminis ter ing or tak ing t h e test may c rea te a less t h a n reliable result.

G. There are numerous ways in wlucha machine result can be indirectly challenged. However, I feel that t o go over all of t h e various pliysiological ways in w h i c h a machine may he inaccurate or al l o f t h e various ways i n w h i c h a machine possibly can malfunction t ends t o l e t t h e S t a t e ' s e x p e ~ t testify a t greater l eng th t h a n i s n e c e s s a r y and tends t o u n d e r c u t the i m p a c t of t h e t h r e e or four areas that you choose. In the . l4 t o .17 area, somet imes it is bes t t o have an e x p e r t to testify to t h o s e

areas of potent ia l problems w i t h t h e machine.

H. Finally, do n o t fall into t h e t r ap o f t reat ing a l l D\W tes t resul t cases t h e same. O f t e n t i m e s you may have strategies or theor i e s which are qu i t e different from focusing solely on t h e i s sue of intoxication. One warning - if you are going to go on an al ternate strategy, you need to pick tha t as your t h e o r y of t h e case and move f o ~ w a r d w i t h it. Y o u may stil l challenge intoxication, b u t if t ha t i s not t h e theory o f your case, do n o t l e t t ha t challenge,

CAYMAN ISLAND TEXAS ADVANCED CRIMINAL LAW SEMINAR

SEMINAR TIhiPS. DATES. TOPICS &SPEAKERS SUNDAY, JULY 3,1994: llotcl Check-In Seven Mile Bench will be at the Treasure island Resort.

6:W psn. - 900 p.m. \Vdcome Reception MONDAY,JULY 4,1994:

230 a.m. - 9:M a . m Comparative l w k at the law of Grand Cayman Island and Costa Rira. 930 a.m. - 10:M a.m. Forfeiture hy Bill \Vl,ite, Austin, Tx and Bill \Viims, Austin, Tx. 200 p.m. - 940 p.m. 4111 ofJuly Crlebmtion at the Lane Star Saloon (Alcohol llesearch for the DWI ponion of the seminar)

TUESDAY,JUIY 5,1994: 7:M a.m. - 830 a.m. EthIc~, by KeithJagmin, Dallas, Tx. and Richard Frankoff. Houston, Tx. 8:M a.m. - 9:15 a.m. Competency and Sanity, by Roger Bridgewater, Houston, Ts. 915 a.m. - 10:W a.m. Error Preservation (Air Preservation far Divcrs), by David Ilotsford, Austin, Tx. 10:W a.m. - 10:30 a.m. Defending the Public Defender System nuough Ineffectiveness, by Rich Teiser. New Orleans, Ia.

WEDNESDAY,JULY 6,1994: 230 a.m. - 800 a.m. D\w: Undoing the HGN and D m , llandy kavitt, Austin, Tx. 800 a.m. - 8:s a.m. D\W Defense Witness P ~ p a n r i o n by Kimberly DelaGaru, Houston. Tx. 8:M a.m. - 9:W a.m. D\VI: Cross E~amination of Arresting Offrcer, by Victor Cannody, Jackson, Mi. 9:W a.m. - 9:M a.m. D\m: Motion i'nctice, by Bill \Vischkaemper, Lubbock, Tx. 9:30 a.m. - 1O:W a.m. D\w: Undoing the Blood Test, by Bmce hlartin, Wichita Fdls, n[. 10:W an, . - 10:30 a.nl. D\W. The Iaw, by Stuan Kinad, Austin, Tx.

THURSDAY, JULY 7,1994: 7:.% a.m. - 830 a.m. DuT Effective voir Dire as Viewed from the &nch bv ludgr Michacl I'eten, Harris County Cdnunal Coun at . . ..

1.w S0mIw: 2.1uJ~;r. C;l* iI~.nIq~. I>.dl:~s C<~unty (:<i#uin:tl ( i w n :at I:IW :ind Jd,pr Iridly I:r:u8mc, i>.!lllr (:oLIII~Y

<:lim.al:ll C w n :XI law, Jnl:c S.utl:t(. 1<i~ll:d~c%11 II~.llld~~!t. \I#\%., Ju<Ig(. Ilr~nd:l Kvwctly, (:CIIIII y (:c)llll it l l w No. 7, Travis County, Austin, Tx.

850 a.m - 9:30 a.m. Effective Opening Statement and Closing Arguments as Viewed from the Bench, by Judge James E. Thomas. Cir. Ct. Judge, 2nd Dist., Miss., Judge L. Breland Hilkrn, Dist. 7 Circuit mun, and Judge Mike Lynch, 167th Judicial District Coun, Travis County, Austin, Ik.

9:30 a.m. - 10:OO a.m. New Legislation by John Boston, Exec. Dlr. of the Texas Criminal Defense Iawyers Assoc., Austin, Tx. 10:W a.m. - 10:30 a.m. Sentencing, by Gay Cohen, Austin, Tx. and Bill Ilabern of Riverside, Tx.

FRIDAY, JULY 8,1994: 7:M a.m. - 8:00 a.m. Poverty Sucks by Pat Ganne, Austin, Tx. 8:W a.m. - 900 a m . Defending Axsinst the Charge of Sexual Assault by KC. Anderson, Austin, Tx and Judge Cynthia Weaver,

Doyleto&, pa. State I'rosecution and l aw Enforcemen$ Doing It Gnl's Wzy or The Agents Wxy, by John R. Smith, District Altornev. Shelbv Coontv. , .

930 a.m. - 10:30 a.m. Inspicatianal Closing Passage TRAVIIL ARRANGEhlENTS have been made throueh Buck Roval Tmvels. Inc.. 6034 \Vea Coonyard Drive. Suite 370, Austin, Texas 78730 (512) 346-1340 - . . or 800-856-1340. For departures from Houston, Jackson, Memphis and New Orleans, please mll Sandn or Charlie. AIRTRANSPORTATION: We will k utilizing ch:irter air out of Dallas. (Flight Tilna-subject to ChflUgd

DALLAS: July 3, 1994 Depart Dallas 9:W a.m. and Arrive Grand Cayman 1205 p.m. July 10, 1994 Depart Grand Cayman 1:05 p.nl. and Arrive Dallas 4:20 p.m.

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Innocent Until Proven Indigent by Randy Wikon

Part 3 - Most of the ineffective assistance

claims I have seen in noncapital case5 arise out of the court appointed attornej failing to investtgate the case properlj o r sometimes failure to d o an) investigation at all. The attorney doe: not want to put the time mto checking out his client's story, his client's witnesses, or take the time to brief out questions concerning the indictment, search warrant, etc I suggest that you use non-office time to conduct your investigation. By non-office time, I mean before or after office hours, or on Satu~days or Sundays. If you are fortunate enough to get an investigator, and plan what you want him to do for you, he can eliminate a large amount of your time being spent on investigatlon. Most judges will at least lend an ear to your request for an investigator, and I suggest filing a monon requesting same (see Appendix No. 6). I have never been denied an investigator when I went to the trouble to file the motion and require a hearing to show good cause. Another motive for requesting an mvestigato~, is that if the Court sees that you are goingto cost the government more than usual in your appointments, the Court will avoid appointing yon on a regular basis! As most of vou are - awale, you are not limited anymore to the $500.00 limitation whlch was imposed for so many years.

So, either investigate your client's case yourself, orget theCourtto appoint you an investigator. But, by all means, plan your investigation, and keep the investigator's 01 your reports for your fll? . BELIEVING YOUR CLIENT

After 21 years of getting trapped into appointments, I have become v e ~ y cynical as to my client's lendition of the facts in his case Most clients will lie to you about thei~ guilt or innocence, and for various reasons. However, though I may feel the client is lying to me, I do not confront him until I have him pretty

well pinneddown bywitnessstatemenr: or other evidence.

If you attempt to instill confidenct and trust m you by the client, his lyin~ can be kept to a minimum. But alwaya check, cross check and double check your client's story. Irom~ally, sornetunea the truth can be stranger and even more helpful than your client's version of the facts. THE CLIENT WANTS Tx REPRESENT HIMSELF

This guy is always a real winner, and will inevitably do himself in. I divide these clowns into nvo categories - the "part timer'' and the "jailhouse Clarence Damow".

The part timer is the chent who writes the judgeand the district attorney di~ect and doesn't tell you about it. He files strange and meaningless writs and/or motions, and generally knows just enough to be dangerous to himself and you. If you get one of these "rocket scientists," my suggestion is to discuss with himwhat motions he would like to file Advise him that you will prepare than for him for his approval, and file same foe him. Use the tactic that you want to help him, but you don't want him to make a fatal mistake by making an allegation or statement that could be used against him. Generally, this w~l l work. But sometimes, you will he "corralled" by the judge at the courthouse, orget a call from the Cowt advising you that your client has filed a motion, or sent him a letter. I suggest that you request a hearing on same for him and force the Court to heant. Prior to the hearing, go over the motion and poss~bly even anlend it to make it at east presentable for you in couft. A :reat number of these wonderful people nay be eliminated by explaining from he beginning how important it is for all :ommunications to be made with the :ourt through you. By doing so, the -lient does not say or do something that nay later be used against him.

The "jailhouse Clarence Darrow" is he fellow who wants to represent litnself completely, and makes life uiserable for everyone, including the

judge and prosecutor. I suggest that you advise the court that your client wishes torepresent himself, andask the Court for a hearing to put these matters in the record. Generally, the Court w~l l advise himagainst it, andwill attempt to talkhimoutofmaking this fatalmistake. Nonetheless, some of these "clonms" persist and you w~l l have to proceed to trial with you in the courtroom as an advisor. My suggestion in handling your advice to him, is to keep detailed notes, and even handwritten notes advising him of what he should or should not do as the trial progresses. Yourpositioninthis case is not enviable, however, you should keep copious notes and records onyouradvice to him priortoandduringtlle trial. Be prepared for your client to attempt anything and request anything from the Court and prosecutor. I have had four or five of these guys, and they can really make life miserable for the prosecutor and Court. And to be quite frank, with the right attitude on your part, you can sit back and advise your client against his requests, and "smile" at the Court and prosecutor, and tell then1 you are sorry, but your client will not follow your advice. THE CLIENT WHO W B NOT F o m w YOUR

This is the client who demands to take the witness stand in his o m behalf againstyouradvice, refuses tocooperate with you in the prepa~ation of his case, or turns down a plea bargain which, in your opinion is in his best interests.

If, against your advice, your client is demanding to take the witness stand in nis own behalf, I suggest that you prepare a statement for him to sign that feu have advised him not to take the witness stand. Set forth your reasons in he statement, and state that he wishes o take the stand against your advice .See Appendix No. 15). I generally go me step further, and during the trial, xior to the client taking the stand, ipproach the bench and advise the 2ourt I have a nlatter to be taken up mtside the hearing and presence of the nry, and request the Court to remove

-- -- -

I

1 V O I C E FOR THE DEFENSE

the jury. Once the juy is removed, I state to the C o u a the situation, a n d ask that the client be placed under oath, and once again admonish him as to the consequences of the action he is about to take aBins t m y advice.

Most likely, t h e Court will also admonish him as well. Sonletimes at this point the client will back off, and follow your advice, bu t if he does not, and persists in his desire to testify against your advice, you have made your recold. Then proceed w t h him a s one of your witnesses.

A p p e n d i x No . 1 4 i s a t y p e d compilation of time expended and expenses incurred o n a case where I was appointed to represent anextremely difficult client, she also had afamily that complained t o almost everyone about everything. Thistype of record keeping will document your tune and what you have done, for future reference. As in this case, I a m sure that I will hear from this client a n d h a family for same time, e i the r t h r o u g h writs or th rough complaints filed. I would not suggest that this amount of detail be kept in every case, but in those that y o u can sense theneedforfuturedocumentation.

In conclusion, remember the TEN COMMANDMENTS FOR REPRE- SENTING BOZOS, and ifyou remember anyrhiig from this paper, remember to KEEP YOUR CLIENT ADVISED OP YOUR ACTIONS AND KEEP DOCUMEN'IATIONOFEVERYTHING THAT YOU DO.

Appendix No. 1

DATE: CLIENT PERSONAL DATA

1. CASE ID: 2. CLIENT NAME: 3. ADDRESS : 4. CITY, STATE, ZIP: 5. COUNTY: 6. HOME PHONE: 7. WORK PHONE: 8. SOCIAL SECURITY NO.: 9. DATE O F BIRTH: 10. PLACE O F BIRTH: 11. PRESENT AGE. 12. CITIZENSHIP: 13. EDUCATION, YRS/MNTHS: 14. DEGREE: 15. PROSECUTING A?TORNEY NAME: 16. PROS. ATIY ADDRESS: 17. PRESIDING JUDGE:

18. m E OF CASE: 19. STATUTE O F LIMITATIONS: 20. OFFENSE CHARGED: 21. CLASS OR DEGREE O F OITENSE: 22. DATE CHARGED: 23. CAUSE NUMBER: 24. COURT O F JUNSDICTION: 25. C O U N n WHERE CHARGED: 26. BAIL AMOUNT: 2 7 PLEA BARGAIN OFFER (Y/N): 28. VICI?M'S NAME. 29. DEFENDANT IN MILITARY (Y/ N): 30 DEFENDANTS BRANCH O F MILITARY: 31. DEPENDANT'S RANK IN MnITARY: 32. DISCHARGE TYPE: 33. DATE OF ARREST: 34. ARRESTING AGENCY: 35. ARRESTING OFFICER NAME & TITLE: 36. SEARCH PERSON (Y/N): 37. SEARCH PROPERTY (I'm: 38. ALCOHOL CONSUMED (Y/N): 39. MIRANDA (Y/N): 40. RELATED CHARGEG) (Y/N): 41. RELATED CASE(S) (Y/N):

OTHER CHARGES INFORMATION 42. PRESIDING JUDGE: 43. TYPE OF CASE: 44. OWENSE CHARGED: 45. CLASS OR DEGREE OF OFFENSE: 46. DATE CHARGED. 47. CAUSE NUMBER: 48. COURT O F JURISDICTION: 49. COUNTY WHERE CHARGED: 50. AMOUNT OF BAIL: 51. PLEA BARGAIN OFFER (YRV): 52. VICTIM'S NAME:

PLEA BARGAIN INEORMATION 53. DATE EXTENDED: 54. EXTENDED BY: j5. DATE REJECTED: 56. DATE ACCEPTED: j7. TERMS: 58. SPECIAL CONDITIONS:

BOND INFORMATION

. . < , i ; , : ~ ~andf~&o&is :@@l@~~g~t@~~?:

inAbilene,Texasandhas been&&&;: . . : ,~~ .,... . to practice in Texas since 197g:.;:@r-Ic,;I: . ~ ~ . received his law degree f r o r n ~ a ~ ? ~ ~ i i ~ .University School of Law. He is $$ frequent speaker at CDLI' andlocal b&.'

.associations on criminal law. ~andy:i$;' an active member of TCDLA and prey$; eil$lp nominated for Board of Directo'm- -

forTCDLAandTCDLE1. He is alsoa lif&: member of WACQL. . . :.. : -: , .

. .

59. SURETY NAME: 60. SURETY ADDRESS: 61. SURETY CITY, STATE, ZIP: 62. SURETY TELEPHONE NUMBER: PRIOR CONVILTION INFORMATION 63. DATE O F CONVICTION/ A C O r n A L : 64. ~FFENSE: 65. NAME USED IN CASE: 66. SECOND NAME USED IN CASE (AKA): 67. SENTENCE: 68. TIME SERVED (YRSIMNTHS): 69. CASE NUMBER: 70. CAUSE NUMBER:

WITNESS INFORMATION 71. WITNESS TITLE AND NAME: 72. \VITNESS ADDRESS: 73. WITNESS CIlY, STATE, ZIP: 74. WITNESS 1 s TELEPHONE NUMBER: 75. WITNESS 2ND TELEPHONE NUMBER: 76. GENERAL BACKGROUND:

EMPLOYMENT INFORMATION 77. CLIENT'S EMPLOYER: 78. EMPLOYER'S ADDRESS: 79. EMPLOYER'S CITY, STATE, ZIP: 80. EMPLOYERS TELEPHONE NUMBER: 81. RATE O F EMPLOYMENT: 82. DATE O F TERMINATION: 83. REASON OR TERMINATION: 84. NET TAKE HOME SALARY:

Appendix No. 2

TIME SHEET, including:

DATE, SERVICE OR EXPENSE, COST, TIME EXPENDED. TOTAL

I'OTALS THIS PAGE:


Appendix No. 3 DATE

Mr. - District Attornev Address Re: Cause No. -; The State of Texas vs

Dear Mr. :

This is to advise you that I have beer appointed by the Judge of the _ Districl Cou~t, to represent the above defendant. Please place my name in your file as hi: attorney of record.

By copy of this letter 1 am advising the District Clerk and requesting that a copy of the indictment in said cause be forwarded to nie at the earliest convenience.

I am also confirnling this appointtnenl by copy of this letter to the Judge of the - District Court.

Wth kindest regards, I remain Vely t d y RANDY \W.SON

cc: District Clerk Address

District Judge Address

Appendix No. 4 DATE

Mr. - - County Detention Center - , Texas -

Re: Cause No. - ; The State of'fexas vs.

Dcar Mr. - : This letter shall confirm our interview

of (Date). As we discussed, I liave been appointed to represent you and this letter shall confirnl that fact.

As we discussed, once again I want to advise you not to discuss your case with anyone, even yourfellon.inniates, unless I am present. Your discussion could seriously liuit any chance we may have in defending your case.

If you need to talk with me, please drop me a line using the envelopes which I furnished to you. I am difficult to catch in my office by phone, but upon receipt of your note, Iwill come and talk with you.

I will keep you posted of any developments in your case, however, if you do not hear fiom me, it is due to the

fact that nothing new has happened which has any effect upon your defense.

If you have any problems, do not hesitate to drop me a line. With kindest regards, I remain Veiy tmly yours,

RANDY WILSON

Appendix No. 5 DATE

Re: Mr.

Dear Sheriff -: This letteris to advise you that the Judge of the District Court has appointed me to represent the above individual. This letter shall also serve as formal notice to you that 1 have advised my client not to discuss lus case with anyone unless I am present, this notice is hereby extended to you and your agents, sewants and/or enlployees. By copy hereof, I am also notifying the - Police Department and any other law enforcement officers, that I hereby expressly deny any law enforcement officer or his agent, servant and/or employee to interview my client, unless1 am present orhave givenwritten permission to conduct such interview.

Respectfully,

RANDY WILSON

cc: -Police Dept. Address

Any other law enforcement agency which may be involved, such as DPS, 'Texas Rangers, TABC, etc.

Appendix No. 6

DEFENDANT'S MOTION FOR APPOINTMENT QE INVESTIGATOR

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes, RANDY WILSON, court appointed attorney in tlie above entitled and numbered cause and files this motion for tlie appointment of an investigator, and insuppoit thereof, would respectfully show as follows:

I.

Defendant is charged with the felony offense of - .

11. After being appointed, the attorney of

record in this case is of the opinion that the appointment of an investigator is absolutely essential to allow effective representation of the Defendant for the following reasons:

(a) There is significant investigation to be done regarding

(here set forth vow facts reauiring investieation,&a numerouswitnesses for State and Defense wllich lnust be interviewed. snecific facts which should authorize & a~ooinm~ent due to the dient.

(b) Due to the time required for preparation of the Defense herein, and the fact that Defense counsel has a practice which requires a great deal of time and expense, he will be unable to independently conduct investigation solely by hiniselt

(c) The State has all of the resources of all law enforcement offices to use in its investigation,while theDefendant, being indigent, does not have adequate resources to lure an investigator.

111. Article 26.05(a) of the Texas Code of

Criminal Procedure, provides for the reasonable expenditure of public funds for the expenses incurred for investigation. The amount of funds needed at the present time is unknown, however it is estimated that the funds needed will exceed $ - . By vim~e of Ake us. Oklnbomn, 105 S.Ct. 1087, the Defendant, if not indigent, wouldeniploy suchinvestigators as would benecessary to prepare the defense of the alleged offense.

Denial of this motion or a linlitation of funds by this Court available for investigation would be a deprival of a fair trial, effective assistance of coun~el, due process and equal protection under the law in violation of lus rights under Article I, Sections 10, 13, and 19 of the Texas Constitution.

PRAYER WHEREFORE, PROMISES

CONSIDERED. Defendant resnectfullv - ~

prays that this Motion be, in all things granted without further hearing; or inthe alternative that the Court set a hearing to determine the foregoing motion.

Respecth~lly submitted,


Appendix No. 7

DATE

Mr. - Assistant district Attorney - District Attorney's Office - County Courthouse - , Texas -

Re: Cause No.; The State of Texas vs. -

Dear Mr. - : This letter shall confirm our

conversation o f O w h e r e i n you made the following plea bargain offer concerning the above case:

a. (Here state the colnplete terms of the plea bargain including term of confinement and/or probation, fine, if any, restitution, if any.)

I will discuss your offer with my client and get back to you as soon as possible, concerning his willingness to accept or reject your offer.

Thank you for your time and considention in this matter.

With kindest regards, I remain Very t~uly youl-s, RANDY \VlISON

Appendix No. 8

DATE

Mr. - County Deteniion Center

Address

Re: Cause No. - ; The State of Texas vs. -

Dear Mr. - : This letter shall confirm our

conversation of O w h e r e i n I advised you that the range of punishnlent for the offense alleged against you is froni - to - confine~nent inthe T&S Department of Corrections and/or a fine not to exceed $ -.

As we discussed the prosecutor handling your case has made a plea bargainoffer of (Iiel-e vnt in the full tenns of the plea bargain offer). --

This letter shall confirm your decision to (accevt/turndown) the offer made by the pl-osecuting attorney.

I will advise you of the date the case will be disposed of, when I receive same fro111 the Court.

With kindest regards, I am Ve~y tn~ly yours, RANDY WILSON

Appendix No. 9

DATE Mr. -

County Detention Center Address RE: Cause No. -; The State of Texas vs. - Dear Mr. - :

This letter is to advise you that the above case has been set for a plea on the m a t (time).

On that date we wdl have several documents wh~chwewill have to review and sign. I will meet with you prior to (time) antl go over the docunlents and proceedings with you.

If you have any questions, please let me know. \Vith kindest regards, I remain

Very tnlly yours, RANDY WILSON

Appendix No. 10

DATE Hon. - ludge

District Court 4ddress

RE: Cause No. - ; The State of Texas vs.

Dear Judge -: Thisletter and theattachediten~ization

jet forth the time and expenses which I lave incurred during my appointment in he above entitled and numbered cause.

I have expended - hours in my tppointment, investigation and qxesentation of the defendant and have ncurred $ - in expenses tluough the ibove date, all of which are listed on the ittached itemization.

Please fill out a voucher for .eimbursement ofnly expenses and your ~uthorization of nly attorney's fees for ;elvices rendered herein.

Thank you forthe oppostunity toassist he court in this matter.

Rith kindest regards, I remain ireq truly yours, WNDY \VlLSON

ITEMIZATlON OF SERVICES RENDERED (Form]

DATE: SERVICE RENDERED: HOURS EXPENDED:

TOTAL HOURS EXPENDED

ITEMIZAnoN OP EXPENSE INCURRED (FomO

DATE EXPLANATION OF EXPENSE: AMOUNT:

TOTAL EXPENSES INCURRED:

Appendix No. 11

CAI'TION I, - , Defendant in the above-entitled

and numbered cause, do hereby state that a plea bargain offer has been made to me. The terms of that plea bargain offer are as follows:

I further state, that nly attorney has made the reconmendation that I accept said plea bargain. That my attorney has advisedme that the range of punishn~ent for the offense alleged in this case is:

My attorney has advised me that upon rejection of the plea bargain,

it is possible that upon a trial of this case I could receive more time than has been offel-ed in the plea bargain. Nonetheless, I d o not wish to follow the I-ecomnendation of my attorney, antl 1 hereby reject the plea bargain offer, knowing that said offerwill be withdrawn and the case will proceed to trial. I furtherunderstand that upon rejectionof this plea bargain offer, that no further offers will be made.

Signed this - day of , 199-

Appendix No. 12

DATE

Mr. - County Detention Center

Address

Re: Cause No. - ; The State of Texasvs. -

Dear Mr. -: Tliis letter shall confirm our

conversation of (date), wherein I


presented the following plea bargain offer:

a. (put complete terms of offer) In our discussion, you stated that you

did not wish to accept the offer. You tnustbc advised that therejectionofthis offer, will result in the offer being withdrawn, and the case shall proceed to trial

As I explained, the range of punishment in the above cause is - , and the Court or the jury may assess punishment anywhere within saidrange. It is my opinion, that based upon the facts of your case, as well as your record, your chances of receiving less thanwhat was offered are dim.

I have comrnunicated your rejection of the offer to the D~strict Attorney's Office, and the Court, and this matter will be set for trial.

I shall be contacting you againwithin thenear fuhire to prepare your case for trial. Should there be any additional offers, I will bring then1 to you inmediately upon receiving same; however, I do not expect any offers and suggest that you prepare yourself for the trial of this case.

With kindest regards, I remain Very truly yours, RANDY XVILSON

Appendix No. 13

THE STATE OF TEXAS COUNTY OF TAYLOR

BEFORE ME. this dav nersonallv

folloGs: "My name is - . I am the defendant

incause No. - , styled THE STATE OF TEXAS vs. - . The case is a - degree felony. My court-appointed attorney, - , has advised me that the State of Texas has offered the following plea bargain: -

(Here set fonh the terms of the alea ba&ain)

After discussing with n1y attorney the effect of accepting or rejecting the plea bargain, I have decided to reject said plea bargain and proceed to trial. I acknowledge the fact that the range of punishment for this offense is - , and if convicted in this case I could receive up to the maximum sentence.

Nonetheless, it is my decision to reject this plea bargain offer."

DEFENDANT

SUBSCRIBED AND SWORN TO BEFORE ME, this - day of - ,19_.

Notary Public in and for the State of Texas

THE STATE OF T!ZAS COUNTY OF TAYLOR

BEFORE ME, this day personally appearedCNAMEOFCLIENT),who after being duly sworn deposes and states as follows:

"My name is - I am the defendant in Cause No. A , styled THE STATE OF TEXAS vs. -. The case is a degree felony. My cou~t-appointed attorney, - , has advised me that the State of Texas has offered the following plea bargahx -

(Here set forth the terms of the plea bargain)

Afterdiscussing with my attorney the effect of accepting or rejecting the plea bargain, I have decided to accept said plea bargain under the terms asset forth above. My attorney has not talked me into accepting this plea bargain offer, and it is accepted of my own free will without influence or coercion of any type on the part of my attorney.

DEFENDANT

SUBSCRIBED AND SWORNTO BEFORE ME, this d a y of A 19 - .


Appendix No. 14

TIME AND EXPENSE RECORD

Prepared and filed Notice of Appeal and Motion for New Trial, 1.25 hrs.

I received a call from Coy Pullara, whereupon we discussed client, and the fact that the jailwould not allowher to visit with her on a one on one basis. I ~llade arrangenlents for Coy to visit with client through Birdie at the jail. 3alled Coy back and advised her of what she needed to do concerning the risits. Coy advisedrne that she was able o make weekly personal visits with

client, after nly discussion with Birdie, 2.5 hrs.

I visited client at the jag, advised her of what I was going to file, and the effect of same. She at that time wanted to retract her plea, which1 advised herwe could not do at this time. She became very upset and stated to me that she wouldnothavepledguiltyiFshe thought she was going to get 46 years. I attempted to calm her clown, andfmally did get her calmed down, and she acknowledged and told me she understoodthatthere was nodealwhen we went into the plea, and that the decision was solely that of the judge. The jailer on duty advised me that client was a potential suicide and they were watching herdosely. I asked why, and the jailer said, that's all I know, I just have been told to keep an eye on her, 1.75 hrs. Subsequent thexto, I filed notice of appeal, and motion for new trial and motion for resentencing and shock probation, 2.5 111s.

I was advised by Judge Thomas, who was in a tiial at the time but was on a break, that a motion had been filed by ~inda Williams, and thatJudgeIane had ft. I went by his of& looked at it, and asked Judge Lane if he intended to act upon it. He said no. Subsequently, another motion was filed by Linda \VilIiams, andno action was takenon it. I received two offce visits from Linda Williams, however I was not in on either occasion. A message was left for met to call her at her mother's house. Upon my return on each occasion, I returned the call andwas advisedLinda was not there, and 1 told her mother to tell her I returned the call, .5 hrs.

Client'smother camein, and1 discussed what I had filed, and what the status of the appeal was. She was most upset about the sentence, and had difAculty understanding what happened. .5 hrs.

Linda Williams contacted me by telephone on 2/18/91, a hrtef discussion was held, whereupon she wanted to come in and talk to nie. She and Mrs. Gonzalez came in and we had a zonference. During this time 1 was ~dvised that a complaint had been filed ivith CJC, I.ULAC, and ACLU. I told her hat I could not release information vithout Angelica's permission, nor could


I get out of representmg her without sometlling fmm her inwriungrequesting that I be removed. I explained to them both about the statements from the judge and where they were made, how they were made and the fact that they were not binding upon the court. I was asked if the Church of Christ had pressured the judge or the d/a. I said possibly so. I know that the church of the blother of the deceased was in attendance at the trial, and a number of the members had signed letters which were attached to the presentence invesrigationrepolt. But I further stated that there was no way of proving any influence on anyone by the church. At no time did I nor did they indicate any colli~sionbetnreen thedaand the judge. I told them that even the d/a had expressed surprise to me about the number of years in the sentence. We discussed how the 46 years was arrived at, and I gave them nly guess, which hadtodowitha 10-12 to 1 ratio ondates served. Thereby effectively making it 15-18 months before she would be eligible for parole. \Ye discussed the "no affirmative finding" of a deadly weapon. Which they were concerned about the prison system attaching an affirmativefmding to thesentence when she arrived there. I advised them, that it had to be in the final judgment, which it could not and would not be included In same, 1.5 lus.

On 2/19/91, James Eidson, Distdct Attorney, asked me if1 wanted to stay on the case, that judge had asked him to ask me. I told him I have not heard any complaints from my client, hut her sister is making aH sorts of noise. That "deep down" I would like to be out of the case, but I would do whatever the comt wanted, 25 hrs.

On 2/19/91, Patrick Shaunessy from ARNcalledn~easkingmeforinfomation about alleged complaints from Linda Williams. He read a couple of items to me. I said thatpossibly they were tnle, butwitho~~tseeing themIcould notsay. Furthemore, about a taped phone conversation, which I did not have any recollection of. To the best of my knowledge, Linda Williams has called me three times. I have returned all three calls, hvo of which she was not there and I left a message. The third call took place on 2/19/91, which is mentioned

above. That call lasted approximately 2 4 nzinutes, .25 hrs.

On 2/19/91, a newsman from KTXS contactedme concerningLinda\Vihams complaints. 1 told him I had nc knowledge of the complaints and had Little to say, .25 hrs.

On 2/19/91, Ann Carter from KRBC contacted me, asking me about complaintsbyLindawilliams. I toldhe~ some of which she read to me were flai nor me. Specifically, therewasallegedly a guarantee made by the judge that if Angelica pled guilty, the judge would probate her. Emphatically, I told her that guarantee was never made, and fuaher more it was pointed out to her onnunmous occasions before the plea and after the plea that there were no guarantees. ThatIcould not guess what the court would do, .5 hrs.

On 2/19/91, Linda Williams called my offjce and told my receptiomst that Angelica had a letter for me to pick up at the jail. After work that day I picked the letter up, which authorized me to release infmmation concerning hercase to any person she assigned. Client did not want to see me that evening, as I asked the jailer to inquire, and she advised me that client just wantedme to have the letter. So, 1 tookthe letterwith me, .5 hrs.

On 2/26/91, went to jail and talked with client. Client wanted to know when something was going to happen on her XI%. I told her about the Motion for TesentencingI hadfiled, and the length ~f time the Judge had to rule on it. I also old her I did not expect him to giant it, md he would probably wait for the ime knit to expire and deny it by >peration of law. I also told her about he appellate process and what would ake placeandthetime frames involved, 1.5 lus.

3n the same date, I met with Birdie, at he jail, and advised her of allegations nade by my client as to mistreatnlent in he jad. Specifcally, it dealt with the lenial of kotex, and the refusal to allow ongerandpersonalvisitation. Iadvised jirdie of my client's complaints and vas advised that kotex could not be ssned due to fact that the inmates used hem to clog the plumbing I advised ser that nly client claims she could not

use tampons, Birdie told me that she would see that nry client got kotex on a limited basis When I inquired about the visitation, Birdie stated that she would personally see that my client got an equal amount of visitation as othec inmates, but due to security reasons there would not be any personal visits, due to jail regulations, other than with nly client's counselor, Coy Pullara,.5 hrs.

On 2/2W91, talked with James Cidson, DistsictAttorney. HesaidJudgeThomas wanted to know if I wanted off the case. I toldhimIwould talk to JudgeThon~as. On the same day I talked to Judge Thomasat the courthouse and heasked me if I wanted off the case. I told him that I would stay, although, it would probably be a mistake. He also told me he hadreceived some mail from client's family. I asked him about the sentence, and he said it was his prerogative to assess punishment and he did not have to explain to anyone. He also said regardless ofnrhat he would have done, my client and her fanlily would not be satisfied. He said she s11011ld feel lucky because therewasnoaflimativefind~ng of a deadly weapon. I mentioned the Motion for Resentencing and Shock Probation and he avoided making any reference to same, .5 hrs.

On 3/5/91 received a packet OF ~nformation fromclient's family. On the same date, got a copy of article from Coy Pullara,.25 ITS.

3n 3/15/91, received notice fmm Clerk ?f Court of Appeals that transcript had 2een filed with them, and giving the :ase a docket number, .25 hrs.

3n3/15/91, received notice from Court teporter concerning she could not finish itatenlent of facts. I immediately called k r k of Court of Appeals and advised hat deadline wasMonday, but I needed o file Motion for Extension of Tme, md had not done so, because I just oday got the notice that reporter could lot finish. Clerk advised to go ahead ~ n d mail on that date would have it on vlonday, .25 hrs.

;/15/91. PreparedMotion andfiledsame

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

sending copy to D/A, 1.5 hrs.

On 3/22/91, received notice fmnlCourt ofAppealsgrantinghlo[ionforExtension of Tune to fileState~nent of Facts to May 7, 1991, .25 his.

On 3/25/91, wrote client at jail and advised her that the record would not be complete until May 7, 1991, and that our b~ief would be due within 30 days after that date. .25 hrs.

On 3/26/91, client's mother called wanting to knowif record was con~plete yet Advised her that record would be con~plete on May 7, 1991. She then asked what groimds would be used in the appeal. I advised her that I could not be definite until record was compIete. She became angry and said I was not representing her danghte~ properly. I told her that I was not going to put up with her criticism, and she 11u11g up on me, .25 hrs.

Qn 4/1/91, received letter written to client on 3/28/91, returned due to fact she had been transferred to TDC. On 4/ 2/91 cemailed letter to Angelica at TDC, .25 hrs

Preparedand filed MotionforExtension of Time for filing of Statement of Pacts, 1.5 hrs.

Received notice that Motion for Extension ofTme forfiling of Statement of Facts hha been received, 25 hrs.

Received notice that date for kiting of Sfatement of Facts had been extended to May 7, 1991, .25 hrs.

Statement of Facts filed with Court of Appeals.

Prepared and filedMotionforExtension of Time to File Appellant's Brief 4/25/ 91, 1.5 hrs.

Received notice that Motion for Extension of Time to File Appellant's Brief had been filed 4/30/91, .25 hrs.

Called Clerkof Appellate Court discussed likelihood of granting Motion. Ms. Mosley advised that it would probably be granted, since it was a first motion, that Court always granted them, $7.50, 25 lus.

5/3/91, received notice from Eastland Court ofAppeals that brieffiling deadline has been set at 7/5/91, .25 hrs.

5/15/91, received two separate telephone calls f a n the mother of my client, inquiring about the appeal. I advised her that nly brief was due on 71 5/91, and that the State's brief was due 30 days after my brief was filed. The appellate court would hear the case, in nly estimate withm 60 to 120 days subsequent to the filing of the State's brief. I advised her that there may or may not be oral argument before the appellate court. I also advised her that the appellate decision would be made subsequent to any oral argument. I further advised her that should an adverse decision be reached by the appellate court, we would have to He a Motion for Rehearing, and if that nras denied, then we would have to apply for Discretionary Review the Court of Criminal Appeals. The telephone calls lasted approximately 30 minutes each, trying to explain these facts to Rosa, who has difficulty understanding English andunderstan~theappellateprocess. 1 also tried to explain what precisely was reviewable on appeal. I have my doubts as to whether or not she understands. It seems as if she is still under the ilnpression thatJudgeThon~as promised probation, which he did not. I went to great lengths to once again explain that there were no promises when the plea was entered. But I am not sure she understood, .75 hrs.

5/4/91, reh~rned a call from client's daughter, asking me to write her a letter telling her what was going on with her case. Told her had written client twice xfore but letters had been returned. Askedher to get meher address, .25 hrs.

5/4/91, Client'sdaughtercaUedme back mnd gave me the following address Zknt #

Mountain V~ew Unit Rt. 4, Box 800 Ziatesville, TX 76528 same day wrote letter to client, giving mer time frames on appeal, and present itatus of her case, .25 hrs.

5/7/91, spent 4 honrsreadingstatement >f facts and making notes.

5/12/91, spent 2 hours working on xief. Primarily, reviewing notes and

looking at documents in transcript.

6/17/91, spent 2.75 hours working on brief in library looking for some new angles on brief.

6/19/91, review of statement of facts and transcript, 2 hours.

6/28/91, Long distance call to Eastland Court, $7.50, .25 hrs. 7/1/91, Long distance call to Eastland Cou~t, $7.50, .25 111% 7/2/91, preparation of hlotion for Extension of Time to file Biief. 7/2/91, Fed Ex of Motion to Eastland $13.75 7/10/91,\Vestlawresear~h15.75 minutes $70.91 7/10/91, Reading cases from Westlaw 1.5 hotrrs. 7/22/91, Drafting of Brief, 4.75 hrs. 7/29/91, Redraft of Brief, and modificatiqns, 2.25 Ius. 7/29/91, 214 copies @I $0.25 per copy, $53.50. 7/29/91, postage toEastlandCourt, $6.75

Appendix No. 15

THE STATE OF TEXAS COUNTY OF TAYLQR

APPWAVIT BEFORE ME, this day personally

appeared(NAME OFCLIENT'l,'tyho after being duly sworn deposes and states as follows:

"My name is - I an1 the defendant in Cause No. , styled THE STATE OF 'TEXAS vs. -. The case is a - degree felony. My coun-appointed attorney, - , has advised me p -.My attorney has explained fully and con~plerely the consequences of my refusal to Follow his advice, specifically -. Nonetheless, I hereby rejecr the advice of n ~ y coun- appointed attomey and wish to (Hel\e put in "take the witness stand in illy 0-

going to take in ovoosition to vour advice.) I do not wish to follow his advice, and this decision ismade against the advice of my court-appointed attorney."

DEFENDANT

SUBSCRIBED ANDSWORNTO BEFORE ME, this-day of -19 -.


VOICE FOR THE DEFENSE

An Update on the Ongoing Abuses Found in Texas Parole Revocation Hearings

by William T. Haberiz

Part 2

This corztinztes a lis,t begm i?i thelast iss~le, dococunrenting exnmplesof abuses inprole hearings.

3) The U.S. Supreme Court has indicated that in matters of parole and probation revocation the Due Process Rights of one subject to revocation proceedings should he identical (See M~~Tissf?jW.Brf?zuer, 408 U.S. 471 (19721, and Gagnon u. Scatpelli, 411 U.S. 778 (1993). In Texas the Administrative Regulations of the Parole Board requi~e under Rule 147.22 that the mles of civil procedure and evidence be used, yet the Cou~t of Criminal Appeals bas ruled that in probation revocation matters the general rule is that criminal rules of procedu~e and evidence shouldhe used. (See Cobb v. Stnte, 1283-92 (4-21-93, Ct. Crim. Apps). The current parole rule has worked in a number of cases to the exheme detriment ofa parolee, as it can deny that person, a valid sanction not avrjlable in the civil rule (for example, see and compare the civil rule requimg the production of documents used to refresh a witnesses' recollection (Rule 613) to the criminal rule of evidence (Rule 6614) which contains a subsection Ce) which is missing from the civil rule. This subsection allows the defendant to move to strike the testimony of a state witness who will not produce the report or document used to refresh hisher recollection-also knownas Gaskin Rule material. In other instances, parole officers (who act as prosecutorsin these hearings) go to the D.A.3 office and read (but do not copy) a police report on a paiticular case. Then, at the revocation hearing that parole officer recites, hearsay inforn~ation, that he has selected from that police report. Of course defense lawyers are not allowed access to those reports in the DA.3 possession unless such counsel is the

lawyer for the parolee where a new charge has been filed. The lawyer hired only to deal with the parole revocation is just out of luck. 'This is true even if at the revocation hearing the defense counsel objeds on grounds of selected hearsay or makes a best evidence mle objection (Texas rules of evidence, rule 1002), those objections are consistently denied. The end result is that the defense lawyer is denied access to the document, the hearsay stands, and the client goes back to prison In one case, this writer was involved m, we had located another defense lawyers notes of the contents of the police report, and after we were denied relief under the above objections and cited the above evidence rules, we asked the the parole officer about several mitigating statements in that police report which the Parole Officer had, 'Ymt forgotten ail about."

4) Improper subpoena procedures (the same personserves subpoenasand also acts as the "prosecutor" in the revocation procedure. Flat denial of requests forsubpoenas, even when it is an unfriendly witness. (For example one recent d i n g was that subpoenas were denied as the evidence was only going to be used at the adjustment stage of the hearing. Where in Morrissey does it say one can have witnesses

except at the adjustment stage?) 5) Bealert to the fact that an apparent

total lack of traming or understanding of matters relating to evidence and procedure does not stand in the way of Parole Hearing Officers doing their job. In fact, as one recent frustrated defense lawyer commented, "Hell, the only training those Parole Hearing Officers have had must have been at the Star Chamber School of Criminal Justice". There can be a great deal of Due Process lost when rules of evidence are misapplied or misunderstood. It is suggested if one is engagcd in a parole revocation, one should take along a copy of the civll rules of evidence so when denied something one is entitled to have under those rules, the defense lawyer can read into the record the exact wording of the rule

6) It is further suggested that one might also want to take along a court reporter to the revocation hearing. It could turn out to be a lot less costly to do that than have the tape transcribed later.

7) Finally, the current p~ocedure of supplyinga stinunary levoation hearing report with recon~n~endations by Division employees to Boaid members

~ l u ~ a b e ~ & a ~ & i t e b ~ ~ i & i e $ t e ~ University (B.A,f and tlie Tex;?a;Tech~ X@iversity$ctrool of Law,., Irejoin&@ 'Te~ps:.Pepai?q@~~=oF :@5f1@i~ns~,~m@. :& Staf~aunsol in- 19B:and. In 1975 began his o~n.piiyate p&ticc: , , ~ . , . , .. . '

Mr. i&bern -is:a past flirector .of .ik ~ L L w @ e r ~ & e se@ed'f?m@y jT@S as::dl~&man: of the Seni<@tlp, :a&d @Z&ttimycommittees. . He: '<<i?@ty

con$ieted. &is &con< tfr@::<$'Yrce Chaimiah oE tlie PederaI':s,mt~@kg @mp.i&.$, f@fih6. N$i&&l AS@qi#bti ofCcimihal Defem+&wye&, and a h >&&I one tee@ d $ t&t orB;i:fliziti6fi's Post Convicabn C;an~hiltee~.Pws.!p~ Years. ~.e:Naijt~ve +u!&I of the parole Section of the '~dvanced. &@@a1 &w Ggrse sp@i&ofed by tlie TeW,B@r.':

~ ~

-. - - - -

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

who then vote to revoke or reinstate each parolee based solely upon each such report, without first submitting such report to the parokes or their counsel for objection or comments, would appear to violate the concept of Due Course. of Law under Art. 1 Secs. 13,19 oftheTexas Constitution, and the Dne Process and EquaIPmtection~ights under the Fifth and Fourteenth Amendments to the US. Constitution in that such repol ts:

a) Represent the whole of what the individual Board Panels review in making a determination of a revocation decision. This writer has often found errols, incorrect statements, and improper i3epresentations of what occurredat the hea~ingsintheserepom. The cnrrent procedure does not allow for the Parolee or his counsel to conlment, object or coFrect the contents ofthese reports untilafterthe Board has voted. 'he parolee or his counsel do not get notice as to when a panel will vote on such a fepoit, much less are they allowed to opportunity to attend and make a presentation, however, the Supervisor of each area hearing section is present to argue to that particular parole penel the contents of the report. Such a procedure seems to thiswriter to be excessively one sided. In addition, the amount of time a panel spends on each vote is reported to bevery minimal, thus denying any real consideration as to dose or serious issues prior to given the case it's vote.

b) In some cases these reports fail to provide sufficient infomlation for a parole panel to act when making an infonneddecisian. Whenthatpossibility is added to the overall picture of these procedures, i.e. a one sided view presented by a hearings supewisor to a boatd panel, the contents of some reports, little information regarding adjustnient, and thetimespentreviewing each report, one is certainly left wondering if the consideration given by a parole panel is sufficient to make an infomted decision.

C) We have noticed in some feports the amount of infornlation contained in the adjustnlent phase of the hearing is so minimally developed that it is questioned if these panels even give considemtion to that issue at all. In fact, theTexas Court of Crinunal Appealshas noted the lniportance of the adjnstment phase of these hearings as being very important. (See IkParte WiNinms, 738

S.W.2d 257). Tlus phase is aimed at providing the Board with the types of equity information that on some occasions should justify reinstatement in spite of a violation. In past years, when Commissioners met in panels to hear revocation cases in person, the adjustment phase often resulted in a sanction being imposed other then revocation. No longer is that the case, in fact, as above mentioned, we have one revocation hearing repon where the Hearing Officer denied the parolee the right to subpoena a witness for the adjustment phase ruling that it was board policy to deny such requests. Clearly this procedure which denies the parolee or his counsel the right to object, comment, correct or present a view of the evidence which contradicts these reports, much less the opportunity to appearbefore the paroleboard panel voting a particular case (See Aiowiss~ u. Bretuet; 92 S.Ct. 2593 C1972)), represents a violation of the above stated Constitutional provisions to protectDueProcess, and Due Course of Law.

It is of note to this writer that to nly knowledge, there is not a single current Parole Board member who has ever taken a day to go attend parole revocation hearings. If I am wrong, then I apologize to that one or two of you who have attended a recent revocation proceeding.

We hope our membership and those parolees who have been affected -will pleasekeep in touch with us, and by all tneanswe hope you wiU supply us with those hearing officerrepom that contain the above and other absurdities we ale Fmding in the newT0nya Harding Rules of Parole Procedure. You may address those reports to any of the following conunittee nlembers. We ask that you keep us posted on new "unique" pron&ires that as lawyers you fmd when involved m this process, Our committee includes:

Wnl. T. Habern Attorney at Law Box 627 Riverside, Texas 77367 (409) 594-2123

Galy Cohn Attorney at Law 600 West 6th Austin, Texas 78711 (5121 476-6201

Neal Pfeifer Attorney at Law 807 Pecan Bastrop, Texas (512) 321-6963

CSton "Scrappy" Holnles Attorney at Law P.0. Drawer 3267 Longview, Texas 75606 (903) 758-2200

Bill LaRowe Box 12487 Austin, Texas 78711 1-800-252-9230

John Boston Attorney at Law 600 \Vest 13th Austin, Texas 78711 (512) 478-2514

EX PAXTE GEORGE TERKELL McDANIEL No. 71,735 Habeas corpus Application

from HARRIS County

This is a post conviction application for a writ of habeas corpus filed pursuant to the provisions of TEX. CODE CRIM. PROC. ANN. art. 11.07

Pursuant to a plea ofguilly, applicant was convicted of possession of, with lntent to manufacture, aconuolledsubsfance,namely methaniphetamine. TEX. HEALTH & SAFETY CODE ANN. $ 481.112. The trial court assessed his punishment at conlinen~ent for fifteen years in the Texas DepartmefitofCriminal Justice, Institutional Division, and a fine of $1.00. Applkdntwas released from confinement on parole in 1989. In 1990, applicant's parole was revoked The instant cause was submitted to this Court in October, l993.

Applicant complained to thw Court that he was illegally restrained of his liberty by the denial d "the opportunity to appear in person before the personor persons having the authority torevokehis parole." Applicant relied on the case of Morrissey v. Brewer, 408 U.S. 471 (1972).

It has come to the attention of this Court that applicant was released to mandatory supervision on November 18, 1993. The issue ofwhich applicant coniplained is now mmt. Ex Pane Nelson, 815 S.W.2d 737, at 739 (T~K Cr.App. 1991).

Accordingly, we dismiss the application - as moot.

PER CURIAM (Delivered January 26, 1994) Do Not Publish

33


I SIGNIFICANT RECENT DECISIONS I I I

by Catherilze Greene Burnett

Part 2

RIGHT TO COUNSEL - PRELIMINARY INITIAL APPEARANCE: ATFORNEY NOT REQUIRED BECAUSE NOT A CRITICAL STAGE. Green, No. 1388.91; decided January 12,1994.

PDR was granted to determine if the right to an attorney applies at D's prelinunary initial appearance [PJAI.

Factsl D was arrested without a warrant. A felony complaint was filedthefollowiilg day, andD appeared before a nlagistrate for a PIA. A finding of probable cause was made, and the magistrate wWII€!d D pursuant to Art. 15.17(a), V.A.C.C.P. The "case" was reset until the following day. At that time D filed a pauper's oath and counsel was appomted.

Held: D's right to counsel was not abridged. The right to counsel under 6th Amendment does not attach until the initiation of "adversary judicial proceedings." Rationale: Resolution of the issue did not turn on an accusatory pleadingwas final, butrathe1 on t h e m o f theproceedings. Here nothing happened at PJA that would render it a "critical stage" which would require the assistance of counsel. Concerning tuarizings: D was warned in accordance with MIraiz& and Art. 38 22, V.A.C.C.P. This ensured that at a stage of the proceedings at which D was not likely to have a lawyer, he was made aware of his right to remain silent and to obtain the presence of a lawyer asa condition to submitting to questioning by authorities. EnreringapIen:Dwas not asked to enter a plea. Moreover, by statute he is not required to do so at PIA. P~ubc(bIecuusede~ernii~zuIion:Since D was arrested without a warrant, State had to obtain probable cause determination "as a condition of any significant pretrial restraint ofhisliherty." Gessteiizu. Ptigh, 420U.S. 103. However, thefindingcontemplatedby Geisteiizis nonaduersarial. MaIfeIS pe7-tniniirg to bail: Bag was not set at the P a . However, even if it had been, the traditional method to attack would be by writ of habeas colpus, which the attorney appointed the next day could have filed.

C O M m Once again TCA has neatly sidestepped the question of defining when adversarial judicial proceedings begin as a matter of Texas law. This is still an open question.

The TCA avoided answering that question by focusing instead on what had happened at the PIA and whether each of these events qualified as a "critical stage."

PRAGTCEGUIDE Anexamining trial is considered to have anadversarialcharacter. Obvio~isly, itprovides an opportunity for D to discover the State's case. For those reasons it is "ar~uably":~ critical stage undcrany 6hl\lncntltncnt nn~lysis. Ilcrc 1 ) did not cl:iin~ that an cx:iinininr! trial wvm conducted - at his preliminary initial appearance. Similarly, he did not claim that the magisuate &&@ have held at exsmining trial at that time or that the probable cause determination nude by the magistrate would preclude a subsequent examining trial. Had any of these allegations been nlade, it would not have been as easy forTCA to evade the core question-when does

g criminal action become sufficiently "adversarial. In those counties inwhich officer testimony is adducedat theprobable cause portion of PJA, counsel might attempt to recharacterize that proceeding as more in the nature of an examining trial - in which an attorney's presence is essential to cross-examine, preserve testimony, etc. Similarly, were D asked to make a plea, then the argument that the PIA was a critical stage [i.e., cleariy adversariall would be stronger. PRACZICE GUIDE: Although both claims were raised, it

appears this case was decided solely on the 6th A~nendment and not Article I, Section 10 of the Texas Constitution.

* * * * . RIGHT TO COWSEL- WAZVER: NOT SHOWN MERELY BY FAILURE TO AFFIRMATIWLY R E Q W T COUNSEL. Oliver, No. 1269-91; decided January 12,1994.

C/A affirmed at 813 S.W.W 762. On the same day it decided Gmen, TCA handed down this

decision, whiclt aIso involved the right to counsel at a preliminary initial appearance. PDRwas granted to determine whether, at crit~calstages of theadversarypmcess, anaccused may waive counsel by failing to request a lawyer.

Facts: D claimed he was denied the sssistance of counsel at a PIA hearing pursuant to Article 1.051, V.A.C.C.P. C/A rejected that argument, finding that although D did have a right the right to counsel at the PIA, he waived that right by failing to request appointment of counsel.

Held: C/Ks judgment was overturned on both points. Pursuant to G%?en, TCA repeated that there is no right to counsel at a PIA because it is not a "critical stage." More inlportantly, however, TCA held that waiver of the right to an attorney will not be found and cannot be inferred only from tile failure to request a lawyer. RdtionaEe: No criminal D may besubjected toformal adversarial judicialproceedingswithout a lawyer unless there is a basis for conchiding that he knowingly, voluntarily, and intelligently relinquished or abandoned his right to the assistance of counsel. Merely failing to ask for a lawyer does not amount to the voluntary relinquishnlent or abandonment of a known right.

The fact that t!c is directed byArt. 1.051 to appoint attorneys the reanest of Q speaks only to the provision of court

zppointed attorneys for indigent defendants. It does not address "waives" of counsel. If D appears in court without counsel, t/j examine D to assure that D is actually aware 3f the right to retain an attorney and to discover if he intends o do so. If t/j is satisfied that D cannot employ a lawyer, t/ I must appoint counsel unless D knowingly and voluntarily ~ives up that right. In the absence of either a relinquishment xaI)~ntlonmcnt ol'tlle right, Wj may not ~:ootl~~ctan:~dvers:i~~:~l udicial proceedings until 1) is rcprcswlctl fly counscl. ...*. PPPEAL - NOTICE OF APPEAL FOLLOWING GUILTY PLEA: SUFFICIENCY OF EVIDENCE AND PRETRIAL RULINGS NOT PRESERVED BY "GENERAL" NOTICE OF PPPEAL.Davls, No. 1212-8% decided January 12,1934.


C/A reversed on sufficiency grounds at 773 S.\V.Zd 404. 'l'his is one of several cases recently decided by TCA

acldrcssing the adequacy of notice of appeal following a guilty plea. It illustntes the trend to strictly constme the notice provisions of Rule 40(b), Texas Rules ofAppellate Procedure.

1;ncts: D was being prosecuted for agg. possession of amphetamine. She pled nolo contendere . T/j found her guilty and imposed a 7 year sentence reco~n~nended by DA and agreed to 11y D. At the time of the plea Wc gave D pemiission to appeal a pretrial nlotion to suppress. D then filed a "genesal" notice of appeal. In C/A D challenged the pretrial motion to suppress and the sufficiency of evidence. C/A held that the suppression issue was waived by D's general notice, but reversed on the sufficiency of evidence point.

LEGAL BACKGROUVD: Rule 40(b)Cl) provides that in order to prosecute an appeal for a (1) non-jurisdictionaI defect [occun-ing before or after the plea], or (2) elror that occurred prior to ently of the plea, the notice of appeal shall state that the t/cgra1ited11ermission to appeal orshall specify that those matters wel-e raised by written motion and ruled on before trial.

Held: Appeal was dismissed for lack of jurisdiction. Rfltiorm1e:A general notice of appeals fails to confer jurisdiction on C/A to address t/c's ruling on D's motion to suppress and sufficiency of evidence claims from a conviction based on a negotiated plea bargain. TCA rejected C/A's interpretation that because sufficiency of evidence claims are a nonjurisdictional defect occurring after entry of the plea, D's general notice of appeal was adequate to allow reviewing court to reach mesirs of the sufficiency challenge. In enacting Rule 40(11)(1), TCA acted on presumption that the body of case law decided under the precursor statute [art. 44.02, V.A.C.C.P.lwould pl-evail and still control. Infilowls, 749 S.W.2d 772, TCA helcl that under alt. 44.02, D had no right to appeal thesufficiency ofevidence tosupportaplea bargainconviction

CO~~lfE~l\rl: TCA noted that record on appeal failed to contain an "Order Limiting Defendant's Appeal" which set out the extra-notice requirements of Rule 40(b)(l). Similarly, there was no other document in the record which, if read together with the noticc of appeal, would substantially comply with the rule's requirement. This seems to indicate a willingness by the TCA to liberally interpret Rule /IO(b)(l)'s requirement if there is anything in the record that can be stretched to espand a bare bones generalnotice of appeal. At the same time TCAis strictly adhering to its prior holdings that scnltinize the adequacy oFnotice of appeal following a guilty plea. 'l'he problem is one nhic l will continue to plague bench and bar. One wonders at the people hours that would he saved were the rule nierely to be amended by TCA - since, as discussed below, it seems D would have some remedies to ultimately set aside the conviction.

PRAC17CE GUIDE: Although not raised or argued in C/A, on PDR D challenged the effectiveness of counsel for failing to file a proper noticc of appeal, and also challenged the volutitariness of her plea since it was premised on being able to appeal the pretrial suppl-ession ruling. TCA could not reach these issues on PDR since they had not been presented to the lower appellate court. IIowever, both issues seem viable under the facts. A post appeal writ of habeas corpus under Art. 11.07, V.A.C.C.P. would be next step.

PI<ACflCEGUIDE: It is impottant to note that D may not

amend notice of appeal out of time. Joi~es, 796 S.W.2d 183 (TCA 1990).

* * * * *

APPEAL - FOLLOWING GUILTY PLEA: LIMITED TO ISSUES LISTED IN NOTICE OF APPEAL OR JURISDICTIONAL ISSUES. Lyoq No. 225-89; decided January 12,1994. JUDICIAL QUALIFICATION - RELATED BY AEPINITY DEFINED. Lyorr, No. 225-89; decided January 12,1994.

C/A affirmed at 764 S.W.2d 1. Facts: D pled guilty to murder pursuant to a plea bargain

for a life sentence. D filed a pro se notice of appeal requesting the court to grant permission to appeal: (I) pre-trial motions, (2) due process violations, and (3) ineffective assistance of counsel. The request to appeal was denied. T/j did grant D's motion for transcript and statement of facts so that D could appeal pro se.

to the victim's brother and [/j's son was prosecutor. Held. "General" notice of appeal does not confer jurisdiction

on C/A to considernonjurisdictional defects occ11r1-ing before or after ently of plea. Granting a "free" record on appeal cannot be construed as pertuission to appeal.

,!X.&WPB OF NOAr-JLRJSDJ~ONAL ISSLES; Sufficiency of evidence; ineffective assistance of counsel.

Held: Disqualificationof Wj is a jurisdictional issue. However, D loses on merits. Ratiomle: Affinity is the tie which exists between one of the spouses with the kindred of the other.

EXAh.IILE.5 OFAPFhWTK Relations of my liusband le.g., his bl-others, or sisters or aunts1 are allierl to me by affinity. In the same way, my relations are allied to my husband by ties of affinity.

However, my bi-other and thc sister of my husband are not allied by ties of affinity. Wnshbrrt-11, 318 S.W.2d 627 (TCA 1958). Here thevictimis notpart of the kindred of Vj's spouse. Hence. no affinitv exists behveen t/i and victinl desnitc fact that Vj's daughter n.as related by affinity to victim.

* * * * * APPEAL - PRESERVATION OF ERROR: D MAY CHALLENGE T/J QUALIEICATION FOR FIRST TIME ON APPEALJohrrsorr, No. 0052-93; decidedJaf1uaryl2.1994.

C/A affirmed at 841 S.\V2d 562. IJDRwasgranted to tieternlineif objections to thequalification

3f a substitute judge could be raised on appeal despite the lack of trial objection.

Fflcls: D was prosecuted for rnisden~eanor D W in Taylor County. T/j recnsed himself and the sitting judge of the Yonstihltional County Court of Taylor substih~ted in under $74.121(a) of the Texas Government Code. On appeal D llleged for the first time that the substitution was improper, -elying upon Articles 30.03 throng11 30.05, V.A.C.C.P.

LEGAL BACKGROUND $74.121(a) provides that "A judge limy not sit 01- act in a case unless it is within the jurisdiction 3f his cou~i."

Held: Conviction reversed. Second judge lacked criniinal urisdiction, and thus could not lawfdly be substituted in a :riminal case. This error was not waived by lack of trial 3bjcction. Rfltio~lnle: Lack of qualification affects the urisdiction of the trial court and may be laised at ally time.

* * * * *


WITNESSES -VIOLATION OF SEQUESTRATION PTHE R~'~lDO~NOTRHQUIR&EXWUSION.Davis, Nos. 709- 92 and 710-92; decided January 12,1994. EVIDENCE - STATEMENT AGAINST PEaYAL INTEREST: SUFEICIENCY OF CORROBORATING EVIDENCE. Davis, Nos. 709-92 and 710-92; decided January 12,1994.

C/A affirmed at 830 S.W.2d 206. Rzc& Dwas prosecuted for two delivery of cocaine cases.

His mother, who had not been sworn or admonished, was in the courtroom during a portion of the State's case. \Vhen defense counsel noticed D's mother, he signaled her to leave the counroom. At theafternoonbreak, D's brother[Zl toldthe mother that it was Z who had sold the drugs, not D. Z had not been indicted for the crime. When Z was called as a witness, he asserted his privilege against self incrimination under the Fifth Amendment, refusing to testify. Another defense witness [Al testified that he saw Z sell the drugs to undercover officers. Defense counsel then attempted to call D's mother so that she could testify to the confession given to her by Z. T/j excluded her testimony on 2 gronnds: (1) becanse of her alleged violation of "the Rnle'' [Rule 613, Texas Rules of C~innnal Evidence1 and(2) because the confessionby Zwashearsay [Rule803(24),T~asRules of CrhninalEvidencel. Alibi testimony was offered through 4 other witnesses.

Ibcld- "theRirle': It was enor to exclude the mother on the basis of a violation of the sequestration rule. Ration& Defense counsel had not consented, procured or otherwise had knowledge of the violation. The mother's testimony was crucial to the defense.

Although it is a matter of t/j discretion, as a general ruIe a witness cannot be excluded solely on the grounds that he violated the sequestration rnle. Any challenge based on a violation of "the rule" must be balanced against D's constitutional right to calI witness. Test: In determining if a witness should be disqualified, t/j must balance the interests of the State, the accused, consider alternative sanctions, and considerthebenefitand de~imentarisingfromdisqualfiation. Where the pa~ticular circumstances showthatdefense counsel was not involved in the violation and the testimony is crucial to the defense, it is an abuse of discretion to disqualify the nritnpw - -- -- -. Held-Sta~menfsAqait~siPenalZ~ztn~sc D'smothershould

not have been excluded from testifvine on the erounds that Z's statement to her was hearsay. '~a'tio?rale: Kule 802(24) provides an exception to the hearsay rule for statements against penal interests. It provides that "A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the tmshvorthiness of the statement." The statement of Z to his mother satisf~d this test. By his statement, Z made himself a potential target for prosecntion. Although a statement to one's mother might not necessarily expose the speaker to criminalliability, different considerations applywhenanother son is on trial for that offense. In addition, there was sufficient corroborating evidence, including the eyewitness testimony ofA that he witnessed Z make the drug saleand the testimony of the 4 alibi witnesses.

COIYIMENT: NO clej%zNi2!e test exists by tubicl~ to gauge the existenceof wr~obo~nti~zgstate~tzats forpt~~posesof ibis ode. Any of a number of factors may be wnsidered by t/j, including (1) whether the guilt of the declarant is inconsistent with D's guilt, (2) whether the declarant was so situated that

he might have committed the crime, (3) the timing of the statement and its spontaneity, (4) the patty to whom the declaration was made, (5) the existence of independent corroborating facts, and (61 evidence which undermines or wrroborates the reliability OF the statement.

**..* INDICTMENTS --STATUTE OF LIMITATIONS: TOILING CHALLENGE MAY BE RAISED PRIOR TO THIN, BY WRIT OF HABEAS CORPUS. Matbews, No. 243-93; decided January 12,1994.

C/Adismissed writ for lack of jurisdiction at 846 S.\V.2d 152. PDR was granted to determine whether a challenge to

limitations may be made via a pretrial writ. Facts: D was indicted in 1993 for agg. perjury allegedly

committed in 1981. The indictment alleged that the stahlte of limitations was tolled under 12 05(a), V.A.C.C.P. LEGAL BACKGROUND: k. 12.05(a) provides "the time

during which the accusedis absent from the State shall not be computed in the period of li~ltitation."

D filed a pretrial writ challenging the validity of the indictment, specifically, the constitutionality of Art. 12.05(a). The writ was denied and D appealed.

Held; CIA has jurisdiction to consider merits of D's challenge. Ratiotulle: TCA considered the legislative history of constitutional amendment snd statnte requiring that objections to defects in charging instruments may be made prior to trial orwaived. It found nothing to indicate that either was intended to affect D's ability to challenge an indictment via pretrial writ. Here, In order for the State to obtain a valid conviction, it must show that the statnte of liiuitations was tolled. D has challenged the constitutional validity of that statute. Thus a pretrial writ is an appropriate vehicle.

COWNT:. As a general rule, ah indictment may not be challenged via a pretrialapplication for writ of habeas corpus. That rnle has exceptions. Obviously, the most frequent pretrial writs involve double jeopardy and bail. However, TCA has allowed indictment challenges via writ in the past %pa& Meyer, 357 S.\V.2d 754 (TCA 19621, permitting a pretrial wit alleging that prosecution was based on a void statute; EjparJe Ward, 56OS.\V,2d 660 VGA 19781, pernutting a prerrial writ challenging the tolling provisions of A l t 12.05(b); Expmte Dlckerso?~, 549 S.W.2d 202 (TCA 1977), pernuttingapretrLalwritalleging that onits face the indictment showed prosecution was barred by limitations.

* . * t f

HABEAS CORPUS - DEADLY WEAPON FINDINGS: SUPFICIENCY OFEVEDENCETOSWPORTAPFIRMATfVE FINDING IS NOT COGNIZABLE IN POST CONVICTTON WlUT.Expar&?McI;atn, No. 71,733; decided Januaryl2, 1994.

Facts: D was convicted of voluntaly manslaughter. A deadly weapon finding was made. The actual killing was done by D's son, while D shouted, "shoot him." D's convictionwas affirmed on direct appeal. D then filed a post conviction writ under Article 11.07, V.A.C.C.P. He argued that the judgment should be reformed to delete the affunative finding becanse there was no evidence that he himself used or exhibited a deadly weapon.

CO1MMervT:. The original case was tried before the 1991 amendment to Article 42.12, $3fg)(a)(2), V.A.C.C.P., which


GRANTED PETITIONS FOR DISCRETIONARY REVIEW

SinceJuly1 7,185, theadministratSue staflutfonzeys of the Courl ofC?i'minal Appeals have compiled, fn the normal coutse of husines, a lisf of cases and legal issum on which the Coutr hms grantedpetitions for rwiew. Although oriyid~pt~paredfori~zternal~~eo~z~, the Court has auth~rized release of the list forpublication and for use by the bench and bar of T m . The wues Ii3ted am summaries as worded by the sk@ anddo notnecessarilyreflecteither the reasoning or thephras~ology used by tbepa~ties or by the Court.

n ~ e following are the casesandissues ota which the Cowlof CrinzinalAppeals granted revieu but which the Corm has not yet deliueted a written opinion. .:.*.>*.:. PDR 0680-93 I0/20/93, Hu~risCo., (A's PDR), Ronald G. St.Jrrlia?z, Burgla?y of Bullding: 1. Whether the Court of Appeals erred in finding that the mailroom of anapartment complexwas a "portion of the building" so that non- consensual entry would constitute burglary of a building?

***+4 PDR 0816-93 10/2W93, Brazoria Co., (AWDR), ValetieSt~sarz Taylor, Mtcrde?: 1. Was it error to give a charge on voluntary intoxication at the guilt/ innocence phase when temporary insanitpas not a defense and appellant did not claim the intoxicant excused her actions? 2. Did the Court afAppeals use the correct standard to determine whether the evidence of intoxication was sufficient to support submission of a charge?

**4.>.;. PDR 0832-93 10/20/93, 81 Paso Co., <A's PDR), Christopher Coffin, Murder Does a juvenile at a certification hearing have a sinrilar motive to develop the testimony of anexamining psychologist as he Later would at the punishment phase of a murder trial for purposes of Tex.R.Crim.Evid. 804(a)(4) and (b)<l). +.>**.> PDR 0854-93 10/20/93, El Paso Co., (A's PDR), Louis Luciano, Criminal mischief greater than $750: Can appellant's appeal be dismissed under

Trap 60Cb)even thoughlus confinement wasimposedasa conditionofprobationi See Tex.Pen.Code S 38.01(3). ****$ PDR 09 00-93 10/2W93, HanJs Co,, CA 3 PDR), Ernest Khg, Possessio?~ of les than 28grams of cocaine. Was there sufficient evidence to show knowing possession of a controlled substance when appellant possessedonly cocaine residue?

do*'>* PDRO906-93 10/20/93,HarrisCo, ( A 5 PDR), Ttwy Lynn Jordan, Delivery oJ Cocaine(enha~zedj: Did theTdal Court abuse its discretion by failing to hold a hearing on appellant's motion for new aa1,whichwas timely filedandproperly presented?

*$896 PDR 0915-93 10/20/93, Collin Co., (A's PDR) Gary D. Thonzasow, Theft > $20,000 1. Were security officers at EDS actingasagentsof law enforcement at the time they obtained Appellant's Statements? 2. & 3. Did the Trial Court err in failing to require the state to elect which transaction they were relying on for conviction and did the trial court err in not givjng an extraneous offense instruction? *:++++* PDR 0954-93 10/2W93,Wise Co, (A's PDRI Teny HawMns, Injury to a child. 1. Did the Court of Appeals err in finding the evidenceinsufficient because appellant had no legal means to "remove" the child such that the state did not prove the allegations under 5 22.04(b)(23 &(d)., namely thatappellant Failed torenlove thechildafterappellant hadassnmed care, custody, and control 3f the child? 2. Where no "familial relationship" exists between the defendant and child complainant, can 3efendant commit injury to a child by xuission under 5 22.04Cb) when the state alleges and proves the defendanr assumed care, custody, orcontrol of the

PDR 0974-93 10/20/93, IVmhington Co., CSPA's PDRj BiI& Rosenhaum, Aggraoated perju~y: Where the

materiality allegation in an aggravated pegury indictment is valid on its face, mayadefendantraiseapretrialchallenge to the state's evidence of materiality, and thus require the state to prove materiality prior to trial on the merits? ****+ PDR0979-93 la/20/93 TaylorCo, CA's PDR) GeotgeR031clhiTuhert, InmIutzta9y Maitslaughter Did the trial court err in submitting improper instructions on potential punishment for involuntary manslaughter over objection?

**la*+ PDR1014-93,1015-93 10/2/93IIarri~ Co., (A's PDR) John Hardis Rogers, Possession of Methamphetamine G (2) Btr@ary of a Habilniion: 1. Whether article 44/29 (b) authorizes appellate courts which have found error at the guilt/innocence stage of the trial to remand only for a new sentencing heating? 2. Whether the Court ofAppeals has the authority pursuant to Article 44.29(b) to order a re-trial on the issue of punishment only? 3. Whether the Coirrt of Appeals may fmd no error at the guilt/innocence state of a trial after this court has found error and remanded the cause to the Court of Appeals only for a harmless error determination? +**+* PDR1036-93,1037-93,1038-93,1039- 93 10/20/93, Dallas Co., 6 ' s PDR), Bradley Todd Earley, Butglary of a Building(2); Reft Bt~trtglaryofa Vehicle 1. Whether the Trial Court's comments before commencing appellant's hearing on a motion to adjudicate guilt, combined with statements made when he placed appellant on deferred adjudication probation, showed that he had prejudged appellant's guilt, the motions to adjudicate, and the punishments to assess, and thus was not acting as a neutral and detached hearrng officer. .:.+w.:. PDR 1132-93 IW2U93, Harris Co., (A5 PDR)* John Lee Shute, Pmrrial Habeas Corpus: Does the double jeopardy bar to prosecution for a lesser

continued on next page


PDRs Continued from page 3 7

included offense, after an acquittal for insufficient evidence of the aggravating elenlent of the greater offense, center on whether a jury instruction on the lesser included offense was submitted, and if so, whether by analogy that rule is invariably applicable when the caseis tried to the court? *:.*** PDR 1177-93, 1178-93 12/15/93, Harrls Co., CS's PDRj, Geoqe Leslie Adanq John P. Gbamhevs, Engaging in ozganized crime: I. Did the Court of Appeals err in refusing to address the issue of whether any court of appeals could abate an appeal so that a trial court could consider an out-of-time motion for new trial because a sister coult of appeals had previously ruled on the issue in this case?

O*Q+>+ PDR 0980-93 12/15'93, San Saha Co., (A's PDR), Ehie Turner, Driving while license stfipended: Is non-conlpliance withArt. 36.01(a)(l) subjecttoa harmless error analysis?

.>44** PDR1183-93 12/15/93, Smith Co., (A's PDR), Aristeo Lira Hares, Driving while intoxicated: Did the Trial Court improperly take appellant's race into account when determining whether to grant probation?

+.:.c..>+ PDR1223-93 01/26/94 H a m C o , (A's PDRj Wajme Cox, Cons to Commit Capital Mzrrder: Did the Court of Appeals err in its analysis of appellant's ineffective assistance of counsel claim?

S,0+3.3 PDR 1249-93 W2Ci94, 1VaIker Co., (A's PDR)Ju y Lynn Cra&ord, Capital Murdec 1. Whether a Defendant's failure to request authorizationfromthe Texas Supreme Court for disclosure of a reportfded by a Crimestoppen' officer (Gov't Code g 414.008) absolves the Trial Coutt from making an in camera inspection of the report after the defendant seeks its disclosure under Tex.R.Crim.Evid. 6141 See Thomas, 837//106.

*.>+*>+$ PDR 1262-93 Ol/ZCi94 Tatrant Co., (A's PDR) Dennis Wdyne Enos, Aggrauared Robberj: Do a witness' privacy interests in his written "victim

impact statement" always defeat a defendant's interests in reviewing the statement for purposes of cross- examination under the Gashin rule?

.9*940 PDR 1265-93 01/26/94, Bell Co., (A's PDRI Jose Marin, Aggmmted Delivety of Cocaine: Does Art. 1.051(E), VACCP, which entitles appointed counsel ten days to prepare for trial, apply only to the fust court appointed attorney, or does it also apply to subsequently appointed counsel? ***** PDR 1300-93 OVZ6/94, Ham's Co., a's PDR) LaryRay Chapman, UCmPF Was the requested charge on Art 38.23, VACCP, sufficient to preserve error?.

Intodyzer Result DWI Continued fmm page 24

disguise or water-down your theory of the case. There are any number of theories which by thinking creatively and in great detail may allow you to successfully obtain a jury verdict in a test result case. The nvo that come to mind most auicklv are:

1. Inadconate nn)lul)lc uuse t c r u. 'l'iic gencral public seems to be moie soph&cated>n this area than it was 10 years ago and is much more willing to find someone not guilty on this ground where the officer clearly is tmlllng for D\W arrests.

2. Behfnd the wheel. Anytime there is an accident, you should startfrom the initial consultation looking for behind the wheel issiies, getting witnesses interviewed and wedded to their testimony, going through the body of behind the wheel cases, to determine whether or not you have a successful behind the wheel defense. [V. Conclusion

A. Inconclusion, one of the strategies that I have had for successfully trying DWI intoxilyzer cases is to apply the Four factors discussed in Mike McCollum's paper and at the beginning 3f this paper, that is: obtain open- minded jurors; have a likeable client; have a good video; and be able to raise some question about the arresting ~fficer's testimony.

B. Treat this case like a felony in the etms ofyour interview of theclient, the ke you have set, the level of work and ntensity you generate prior to trial; the

level of detailed work that you do in a trial.

C. Find a theory of the case, make sure that it fits all of yourfacts, and stick with it through to conclusion.

D. Finally, why create a battle of the experts if you don't need that. Figure out what testimony will come from the State's expert. If that is all of the evidence that you need to present your theory of the case to the jury, then do not put on your own expert. Do not fight the Stake's expert over every potential problem that the machine, physiological background, design or operation may have wrong with it. Fmally, there is no substitute for actual jury trial experience. Pick a jury and try as many of these cases as you can, and you mill be amazed at the level of response you willgethomjurofs invoir dire and in verdicts from a successful presentation of the theory of the case.

E. While I know this is merely a surface treatment of some of these issues, I mish all of you success and please keep me advised of any new methods or creative strategies that you come across in trying intoxilyzer result DWIs.

In and Around Texas Continued fiompage 13

and pursuant to Article 18.20 of the Code of Criminal Procedure, I, Michael 1. McCorrnick, duly elected, qualified and acting Presiding Judge of the Court of Criminal Appeals, State of Texas, do hereby appoint the Honorable Pat McDowell of Criminal District Court No. 5,600 Commerce Street, Room 612, Dallas,Texas 75202 (Telephone Number 214/653-75051, as the judge of competent lurisdiction within the First Judicial Administrative Region of Texas authorized to consider interception applications under said act relating to the interception and use of wire or oral commu~cations.

This order is to be filedwith the clerk 3f the Coun of Criminal Appeals in ~ccordancewithSection 3 ofsaid Article 18.20, V.A.C.C.P.

Signed this 15th day of March, 1994. MICHAEL J. McCORMICK Presiding Judge

4lTEST: m o w LOW gerk, Court of Criminal Appeals .


nowpermitsanLPffvmativefJnndingupon the detaminatlonthat a pa* knew that a deadly weapon would b,e used on exhibited d u h g the offense.

h G e t c i 2 Writ relief not applicable. Ratiowle: Claim presented is not c ~ g n i a b l e by way of collateral aaark Traditronally habeascorpusisIlmited to review either: C D jurisdictional defects or (21 denials of fundamental or constifutiolkll right% Ghalengeg to the suffidency of e v i d m e are not the proper subject of a collateml attack. W

tesWiedthatWillswasshotbetween the eyes (Owens testified that Applicant mM him he s h a Wrills between the eye).' This Court held that this ww smcient evidence to corroborate the testimony of tile accomplfces Owens Wd Mitchell. Mi&ell a Sf&@ 640 S.W.2d at804809. However there= no corroboration af the aaonlpliies' a m u a of the t h e sf the killing of WBS,~I

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