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8/11/2019 1986 October Docket Call
1/48
OCTOHERI98
DOCI(ET CALL
MONTHLY PUBLIC TION
OF
H RRIS
COUNTY
CRIMIN L
L WYERS SSOCI TION
CRIMINAL JUSTICE
8/11/2019 1986 October Docket Call
2/48
EDITOR
Isbell
GENERAL MANAGER
Robert Pelton
PRODUCTION
Donna K. Kleszez
DOCKET CALL i s publ ished
monthly by
the
Harr is County
Criminal a ~ y e r s
Associa t ion
a
non-prof i t .
tax
exempt
profess iona l
Associat ion of
criminal
defense
l avyers .
ADVERTISING RATES;
FULL PAGE
.
200.00
1/2
Page
100.00
1/4
Page
50.00
DISTRIBUTION: 500 copies
monthly. Art ic les
and other
edi tDria l cont r ibut ions should
be sent to HCCLA.
P.O.
Box
22773. Houaton,
Texas
77027 or
the
Associat ion
of f i ce a t 705
Main St . 1400.
Houaton,
77002.
TELEPHONE:(713)
226-2404.
DEADLINE for the November
ne vs l e t t e r i s October 28, 1986.
Board of Directors
1986-87
P r t l i ~
t
Cande l no
Elizondo
P r e i ~ e . t [ l e c t
Allen C. Isbell
Vic
P r t s i ~ C l I t
Feli:I: Cantu
ScCrtt.rY
G Mao Secrest
Trill. ...
Mary
Moore
Chair
Randy MoDonald
Roger Bridgwater
Walter Boyd
Mary E
Conn
Benjamin
Durant
Miahae l
Essmyer
Jan
WoodJiJard FO I
Ruben Guerrero
Jim Lavine
Han y
Loftus. Jr.
aazoland McInnis
Dal)id Mitcham
Win Out z.m.,
Robert
Pe ltc:m
Richard Trevathan
Gary
Trichter
K:ristine
C. Woldy
OCTOBfR 1986
CONT NT8
FROM THE PRESIDENT S DESK
Candelar>io
Elizondo
3
ATTORNEY
I
I
D.
CARDS
She:riff Klevenhagen
5
HCClA JUDICIAL POll . 6
HEARSAY
I , I
Allen
C.
Isbell
8
TWO QUEST IONS
ANSWERED
,
Allen C. Isbell
9
THE CHA I RMAN SPEAKS
I
Randy MaDonald
CRIMINAL JUSTICE
Jim
Skelton 10
COURT TALES
,
I
. .
, I . .
Judge
Shelly
Hanaoak13
WHAT WAS THE
JUDGE
TRYING
David Mitaham
TO DO I
15
I
EDUCATIONAL PROGRAMS
21
LETTER TO
HOLMES
Dan
Ge:rson
25
LETTERS
I I ,
26
I ,
OBJECTIONS TO
JURY
CHARGE
BASED ON
ART .37.07 SEC 4. . .
AUen
C. IsbeU
UARRIS
COUNTY CRIMINAL L WYERS
ASS
OCIATION
Past Pnsidents 1971-J985
J. Anthony Fritoux
Stua:t t Kina:t d
George Luquette
Marvin
O. Teague
Diak DeGuerin
W.B.
ItBennie
ll
House
3
Jr.
David Biree
Woody
Densen
WiH Gray
EdlvaPd
MaHett
Ca:t otyn {}(nIaia
Jack B
Zirrrnermann
Ctyde Wit Uarne
Robert Petton
1972-1973
1973-1974
1974-1975
1975-1976
1976-1977
1977-1978
1978-1979
1979-1980
1980-1981
1981-1982
1982-1983
1983-1984
1984-1985
1985-1986
- ~
http:///reader/full/ScCrtt.rYhttp:///reader/full/ScCrtt.rY8/11/2019 1986 October Docket Call
3/48
I
From the President s esk
y andeZario
ELizondo
Every
day I see an
erosion
of our
individual
r ights. Histo-
ry has taught us that the denial of
r ights
to the
gui l ty
acts as
a precedent
to the denial
of the same r ights
to
the innocent.
am al l for the government s
concept
of stopping i l lega l drug
t ra f f ic as
every good ci t izen should
be,
but I am adamantly
opposed,
as every
ci t izen should be,
to the
government acom-
plishing tha t
goal
a t
the
expense of
our c iv i l
t ights .
uch media attention
has
arisen
concerning
the government s
war
against
drugs.
In the real
sense
th is
has
occurred
because
i t s
an election year, but
pol i t ics ought not be
confused with or
overshadow
our individual
l iber t ies .
The House and Senate b i l l
on
the War Against Drugs f l ies in the face of our Consti tut ional
guarantees
to
be
free
from governmental
interference
and in t ru-
sion.
The government s
answer
on the war on drugs is
to
take away
everybody s r ights, do away with the exclusionary rule) and even
go as far as
to
gather
i l legal
evidence by
allowing
police
off i -
cers to impersonate defense attorneys.
The government has declared war on
everyone s
consti tut ional
r ights. This war is the same thing that
occurred
in
Nazi Germa-
ny. Indeed,
Hit le r s
government used
the
mili tary
to police the
ci t izens.
We
should
a l l
fear
our
government s
use
of the
mil i ta-
ry to police our ci t izenry. e have
police. Our
police
are
accountable to the
ci t izens whereas our mil i tary is
not.
We have seen what effects the
mili tary
has
in some of
the
South
American countries.
3
8/11/2019 1986 October Docket Call
4/48
Our
present
administrat ion decries
tha t
drugs are having an
adverse impact on
the
American
people and
tha t
is t rue, but thei r
solution is to do away with the exclusionary rule on the
pretense
that i t prevents the t ru th from
being
told.
I f that i s
so, we
might
as well do away
with the attorney-cl ient pr ivi lege
next
because tha t
supposedly prevents the
t ru th
from being told and
then we ought to
do
away with executive privi lege which President
Reagan
rel ied
on during the Rehnquist
hearings,
because that also
hides the
t ru th .
During the anti-drug hearings and while watching the amend
ment approved by
wide
margins, Representative Don Edwards of
California said:
this
is
what happens when you
have
a panic.
The fervor can best be described
by
Representative Barney
Frank of Massachusetts.
We have done
violence to common sense,
to leg is la t ive
procedure and
Gramm
Rudman; and we
have
taken some
shots
a t
several amendments
to the
Consti tut ion. I
am
afra id
th i s
bi l l is the
l egis la t ive
equivalent of crack; giving you a
short time high but dOing long term damage to the System and
being expensive
to
boot.
Our
President,
in
his speech
on September 14,
1986,
to ld the
American
public tha t we
owed
the dead soldiers
of America an
a l l
out effor t in the war against d r ~ g s so
tha t
thei r deaths would
have meaning.
Their deaths do
have
meaning in that they gave
their
l ives
protect ing the
Consti tut ion and
Bil l of
Rights
l e t s
preserve
that
meaning.
Let s
not
l e t th is hyster ia trample
our precious r ights .
8/11/2019 1986 October Docket Call
5/48
Attorne Identification Cards
To a l l ev ia t e much
of the
confus ion t ha t
occurs
in
pass ing
bar
cards back
and
for th
from
the MCC
to
a t to rne ys when
a t t o rn e y s
come to the
j a i l
to v i s i t
t h e i r
c l i e n t s , the fo l lowing
procedure
wil l be implemented.
Attorneys
w i l l
be
i s sued
permanent
passes
t ha t
w i l l
take the
form
of i d e n t i f i c a t i o n
badges.
These badges w i l l be yel low, i n c o lo r ,
and
wil l inc lude
a
pic ture of the a t to rne y , Texas
Bar Card
number, d r i v e r ' s
l i cense number, DOB,
he igh t , weight
and
day
of
i s s ue .
When an a t to rney comes to v i s i t he w i l l cont inue to check in with
MCC
but
wil l not have to leave h i s bar
ca rd .
He must
s ign in
with the da te
and
the
t ime
he l eaves .
PROCEDURE FOR ISSUING CARDS
1. Attorneys
wi l l
see
one
of
the Detent ion
Bureau
s e c r e t a r i e s .
Attorneys wil l be
r equ i red
to br ing with
them
two
(2)
f ac i a l
photos , 1
1/4 by
1 1/4 . One
photo
wil l
be
a t t ached
to
the
a t to rney badge
while the
o ther
w i l l be a t t ached to a
3x5
index
card . This card ,
along
with
the
pe r t i ne n t in fo rmat ion , w i l l be
kept in
the MCC as a
cross r e fe rence
when
the
Attorney
comes
to
v i s i t .
2. The a t to rneys
w i l l
be
ab le
to
have t hese badges made
up
Monday through Fr iday
between the
hours
of
8:00 a .m. - 5:00 p.m.
During the i n i t i a l i s s ue ,
the fo l lowing schedule
w i l l
be
e f fec t i ve , for
the week
of
October
13th:
Monday Last names
beginning with
A
t h ru D
Tuesday
Last
names
beginning
with E
t h ru
I
Wednesday
Las t
names beginning with
J
t h ru
M
Thursday
Last
names
beginning
with
N
t h ru
Q
Friday
Last names beginning
with
R t h ru
Z
3. This
informat ion
w i l l a l so be pos ted a t the
MCC
and a t t o rn e y s
booths
throughout
the j a i l .
4.
This badge, once i s sued , wil l
be
kept by the
a t to rney
and
worn
in a v i s ib l e manner when en te r ing the jail It i s imperat ive
t ha t the a t to rney
r ea l i ze t ha t the
badge
does not mean t ha t they
wil l
not have to s ign in
or
out .
5 . In the event a badge i s
l o s t ,
the a t t o rn e y
sha l l
c a l l the
Detent ion Bureau
immedia te ly
to
r e p o r t
the
l o s s .
At t ha t t ime , a
new i d e n t i f i c a t i o n w i l l
be
i s sued .
6.
All badges
are
the prope r ty of the Harr i s County
S h e r i f f ' s
Department
and
must be su r rende red
upon
reques t .
She r i f f
Klevenhagen.
s
8/11/2019 1986 October Docket Call
6/48
HCClA
1986 JUDICIAL
POLL RESULTS!
CRIMINAL
DISTRICT
180th
Dis t r i c t
182nd
Dis t r i c t
183rd
Dis t r i c t
184th
Dis t r i c t
185th
Dis t r i c t
209th Dis t r i c t
232nd Dis t r i c t
248th
Dis t r i c t
County Cour t No.
County
Cour t
No.2
County Court No.
County
Cour t
No.
County Court
No.
County
Cour t No.
County Court
No.
County
Court
No.
County
Cour t
No.
County
Cour t
No.
COURTS:
1
3
4
5
6
9
11
13
14
CANDIDATE
PREFER
Ruben Guerrero
78
Pat Lykos
10
Donald K. Ship ley
50
Marshal l Wil l iams
17
Jay
W Burnet t
60
Mike
Wilkinson
22
Bob Burdet te
74
Carol
H.
Lane
10
George H. Godwin
45
Carl Walker , J r
21
Michael McSpadden
37
Moses
"Moe"
Sanchez
42
A.D. Azios 68
Glenn J
Youngblood
12
Woody R. Densen 68
E.D. McKinney,
J r 13
David Jaroszewski 6
Bi l l Ragan 74
Don Hendrix 66
Rob
Walker 13
Jimmie
Duncan
26
Cheryl E. I rv i n 60
James E. "Jim" Anderson 25
Franc i s Will iams
34
Hannah Chow 47
Roy T. Rogers 8
J R.
"Bob"
Muss1ewhite
81
Larry Wilson 5
Alfred
G.
"A1" Leal 76
Joe
S.
Powell 9
David
Mendoza 52
Jack "Pick" Pickren 28
Mark
Atkinson
32
Bonnie Fi t ch
42
Jim
Barkley 30
Raymond "Ray" Fisher
14
6
8/11/2019 1986 October Docket Call
7/48
___________________________________________ ____________
Supreme
Court Place
1
Charles
Ben Howell
8
Oscar
H.
Mauzy
37
Supreme Court Place 2
Rober t
M
Campbell
31
Nathan
E.
White , J r
1
Chief
Jus t i ce
C t of AP.
John L. Bates
14
Fi r s t
D i s tr i c t
Raul
A
Gonzalez
34
Frank
G.
Evans
60
Tom
D.
White
11
Associate Jus t i ce
Mike Hjamarson
3
CT of AP Fi r s t D i s t r i c t
James F.
Bud
l
Warren
56
311 Surveys were mailed
to
the
membership;
127 Surveys were
re tu rned by
October 2 , 1986.
CROWN COURT LECTURES
presents
B RRISTERS ON DVOC CY
Friday, October 24,1986
South
Texas College
of
law
Houston, Texas
1303 San Jacinto
Lecturers:
lord
Hooson, member Gray's Inn. one 01 her Majesty's Counsel, member of the House of
Lords. practices at the Bar in London
David Barnard, Barrister, member Gray's Inn. lecturer Inns of
Court
School
of
Law, books:
"The Civil Court in Action", "The Criminal Court in Action", "The Family Court in Action",
co-author "Evidence and Advocacy"
Keith Evans, Barrister, member Middle Temple, Gray's Inn and State Bar
of
California. N.I.T.A.
advocacy instructor, book: "Advocacy at the Bar"
Peler W, Murphy, Barrister, member Middle Temple, State Bar
of
California and State Bar of
Texas. professor South Texas College of Law, books: "A Practical Approach to Evidence",
"Evidence: Cases and Argument", co-author "Evidence and Advocacy"
8:30
Registration
9:00 Opening Remarks
9:05
The Nature
of
Advocacy: Four Perspectives
10:30
Break
10:45 Constructing and Delivering
your
Closing Argument
12:00
Lunch (On Your Own)
1:30
The Art of Successful Direct Examination
2:15
The Rapier and the Sabre: Secrets of
Cutting
Cross-Examination
3:30
Break
3:45 Of
Experts and Men of Science
4:30
Life and Practice at the English Bar
REGISTRATION
Bar No. _
Name Phone
Address
Zlp
_
$125 tuition includes copies
of
"Advocacy at the Bar and "Evidence and Advocacy", Make
checks payable to CROWN COURT LECTURES,
216
Stratford, No.5. Houston, Texas 77006.
For more information call 224-6719.
This course has been approved by the Texas Board of
legal
Specialization for credit toward
the CLE requirements for certification and recertification
In
civil, criminal and personal injury
trial law.
8/11/2019 1986 October Docket Call
8/48
__
Uearsa
... By Uen C IsbeU
Mary Heafner ' s beaut i fu l r ing
(3kt
diamond
surrounded by gold) is only a "fr iendship
r ing,
given
to
her for
being "a wonderful person" .
Walter Boyd and Clyde Williams now
off ice
together .
Mexican Independance Day Parade saw severa l
local
judges
r iding
high.
Judge
Angel
Fraga,
r iding with Judge Fel ix Salazar
was
almost thrown
from the conver t ible when it
s ta r t ed
up. Same
day,
a Pasadena Parade featured other Jud ic ia l
Candid
ates ,
including Ruben
Guerrero and Judge
Robert
Baum ( Juveni le Cour t) . Saturday t e lev is ion in the
Centra l Peni ten tuary Unit a t Sugarland shows adul t
inmates t e l l ing
juveni le probat ioners
how the r ea l
l i f e
i s , and why
the juveni le offenders need
to
get
out
of crime. Judge Baum bel ieves
the
program
developed by Cathol ic Chaplain Gonzales i s
a
wonderful idea
Congratulations
to
pizz i to la , Hinton,
and
Sussman in the i r defense of cont rac tor Durwood
Greene. Tried in Galveston on
a change
of venue.
Defense
apparently
proved
tha t
Greene
i s
ju s t a
good ole
boy who
did
not know what hi s a spha l t
company was up to
in
Harr is Conty. Corporation
found
guil tYJ
he acqui t ted. .
James
Lei tne r
and Dennis
Spurling pulled
one
out of
the f i r e
when
they got
l i f e for hatchet k i l l e r
charge with
Capita l
Murder
in the
351st .
Lei tne r
has
formed a
par tne r sh ip
with
Roger
Bridgewater.
Correct your
H.C.C.L.A.
directory to
show 501
Carol ine 11200,
Zip 77002,
Phone - 224-4233.
Judge Bi l l Ragan 's campaign
par ty
a t the
Cat t l e Guard,
Saturday, October
04,
1986,
may have
been the
success
of
the
year . Big crowd, grea t
music by
the
"Texas
Throw
Down Country
Western
band, and fun for
a l l .
Judge Ragan should make it
an
annual
event, l ike Constable Rankins ' s .
Good to see Retired Judge Dan
Walton s i t t i n g
as v i s i t i n g
judge
in the 263rd. .Wil l iam Dean
Leikam, Attorney-Ar t is t , may have his paint ings
displayed
a t the Hooks
Epstein
Gallery soon
Mike
Monks and
Pat
Monks have opened
law off ies
in
de lega t ion
i s
James Sta f ford .
Can you imagin
Stafford in
P.R.C. ' .Don' t
plea barga in
wit
Douglas
Durham! The
former
Chief
Prosecutor
i s
no
amongst
us.
Firm ca l l ed CorneLius, Durham an
Horan. His view
of the case has undergone
metamorphis (word
to
be def ined next
issue
fo
Walter Boyd).
I t has been
" f r u i t
basket turn
over"
t ime
a
the Court house with
four
Dis t r i c t Courts
moving
A new schedule i s
published
in t h i s
month'
"Docket Cal l" .
Current as
of 10/06/86.
Probabl
wil l change
again
a f t e r e lec t ion-day .
Angelica
Landa
i s help ing in r ecru i t ing ne
members.
We
need others
to
volunteer . Doug Durham
promises to join
s ince he
wil l
be making
so
muc
money
as
a
"Court-Appointed"
lawyer.
Referral
Service
REFERR L SERVICE STATISTICS
UGUST
Felony Cal ls Received
25
Felony Cases Retained
o
Misdemeanor
Cal ls Received
44
Misdemeanor
Cases
Retained
5
Total
Surveys
Mailed 30
Surveys Returned
19
SEPTEMBER
17
3
20
3
24
11
CRIMIN L JUSTICE
By im Ske
Lton
This a r t i c l e i s about the p lace where
t r i a l
lawyers
play
the
so -ca l l ed "cr imina l
j u s t i c e
system".
The phrase
"cr imina l
they
t a l k
however ,
in s ide r s .
~ b ~
j u s t i c e system" i s a term used
by i n s i ~ r ~
when
to
ou ts ide r s
about
cr imina l
cour t s .
We
Ins Ide rs ,
know the r ea l t r u t h , and we w i l l admit
it
to other
This
"cr imina l
j u s t i c e system"
bus iness
i s
more
~ ~ m a . h ~ n
R V R ~ ~ m .
I t
i s a
ame la ed between
8/11/2019 1986 October Docket Call
9/48
TWO QUESTIONS ANSWERED
By
llen C sbell
1.
What
Authority Is
A
Per
Curiam
Opinion?
A
published
Per Curiam
opinion
i s a s trong
sta tement and au thor i ty
from the
Court
of
Criminal
Appeals. This i s
not
to be confused with an
unpublished Per Curiam .
2. What Authority Is P.D.R. Refused?
In
a
published Per
Cur iam
opinion, Burch v.
Sta te .W.2d
(Tex.Crim.App. No. 906-85
decided
June
25,
1986), the Court
of
Criminal
Appeals reminded the
Bench
and
Bar:
To prevent any
misunderstanding,
we take th i s
opportuni
ty once again to emphasize t ha t
summary
refusal
of
a
pet i t ion
for
discret ionary review
by
th i s Court
i s
of no
precedent ia1 value. This i s
t rue whether
the
pet i t ion
i s refused without
oplnlon, as i s
the
usual pract ice as well
as
where the pet i t ion i s refused with a
br ie f opinion
disavowing the reasoning employed by the Court of
Appeals, as in
the
ins tan t case.
The Bench
and
Bar
of the
State should
not
assume tha t the
summary
refusal
of
a
pet i t ion
for discret ionary review
lends any addi t ional author i ty to the opinion of
the
Court of Appeals.
Shef f i e ld
v. Sta te 650
S.w.2d 813
(Tex.Crim.App.
1983).
The Chnltmnn Spenks
...
By
Randy McDon
Most
members
of HCCL may not know
tha t
board approved the
purchase
of
a
computer. W
why
in
the world
would
we need
a
computer?
r ea l l y
do not know the
complete answer to
t h
but
Candy
Elizondo says
tha t
we
do.
He claims
wil l be
useful
in co l lec t ing
del inquent
dues.
quest ion i s :
Do
we
need
a computer to
co l l
dues?
Well, maybe Candy i s r ight .
Maybe
mem
wil l pay dues once
the computer
sp i t s out
names of
those members
tha t are del inquent
then
the
Docket Call publ ishes the i r names
m
l ike
the State Bar
of Texas publ ishes names
lawyers who have not
paid bar
dues . With
tha t
t
of notor ie ty maybe
a
Dis t r i c t or
County
Judge w
feel
bad for
the
del inquent
him
to
a
case.
Of course ,
people who want to join an
HCCL do
so
for
a
reason.
maybe
for the Docket
Cal l
a t to rney and app
I st ll bel ieve t
organizat ion such
I f
not for the
C
with
the
update
recent
opinions . So,
a l l
you members who know
are de l inquent ,
get
those checks in the
m
before
the l i s t
comes
out . Be sure
to mark
on
y
check
tha t you
are
paying because
of t h i s col
and not because of
the
computer.
Experience Builds Strength
Chief Justice
Frank Evans
Re-elect
Associate Justice
Bud Warren
First Court of Appeals
29
Years
of Judicial Experience
1948 Norfolk Houston,
Texas
77098
Paid for by the Frank G Evan. Rlecllon
Campaign,
Janet Evans Treasurer anid
James F Bud)
Warren
Re-election Campaign,
Merle Warren Treasurer.
9
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CRIMIN L JUSTICE
y
im SkeZton
This a r t i c l e i s about
the
place where t r i a l lawyers
play
the so -ca l l ed cr imina l j u s t i c e system . The
phrase
cr iminal j u s t i c e system i s a
term
used by i n s ide rs
when
they t a lk to ou ts ide r s about cr imina l cour t s . We i n s i d e r s ,
however, know
the
rea l t r u th , and we wi l l admit it to o ther
i n s ide rs .
This
cr imina l
j u s t i c e
system
business
i s more
l i k e
a game than a system. I t i s a
game
played between
lawyers with a judge ac t ing as an umpire. The pr ize
or
reward
i s
the verd ic t . The
defendant is
needed j u s t
as ch ips a re needed fo r a high s takes poker game. The
h igh l igh t of
the
game i s
the
j u ry verd ic t ,
which
comes a f t e r
both s ide
have
puled
out a l l the
s tops to
win.
The
t r i a l
process
has a l l the
t rappings
of an
academy
award show. The
d e l ib e r a t i o n s
are
se c re t ,
j u s t l i ke the
sec re t
b a l lo t i n g
fo r the bes t p ic tu re . ome hot - sho t
account ing
fi rm knows the Oscar winners
in
advance,
but
the
cr imina l system i s
not
so fancy. Ins tead
of
high pr iced
account ing
f i rms,
we
s ubs t i t u t e
b a i l i f f s
l i s t e n ing
a t
the
j u ry door. When the
ju ry walks out with
a ve rd i c t ,
they are
given a
s tand ing
ovat ion
by
everybody but the
judge .
I f
a l l
twelve
of
them are
looking
down
or
dragging a
rope,
it i s
very
bad
for
the
defense team.
I f
the
twelve
are smi l ing or
shoot ing the f inger a t the
judge , it
i s
very
bad
for
the
s t a t e . The j u ry ' foreman hands
the
ba l lo t to
the
ease
dropping
b a l i f f , who hands it to the
judge,
who then reads
it
for
about ten hours before he hands it to the
c le rk .
The
c l e r k
then
reads the verd ic t .
Who
i s going to win? o
you
ge t
the Oscar of does Oscar
ge t
the j a i l ?
The
winning
s ide r eac t s
j u s t
l i ke
the
Oscar
winners .
There are big
smi les ,
hugs, hand
shakes and
many
thank you
murmurs. Often t imes the re
are t e a r s
and
many
s ighs of
r e l i e f . Meanwhile, the
lo se r
goes s l ink ing
of f ,
wishing they
could
pul l
the
North American
cont inent
over t he i r
head. Old
Ceci l
B.
DeMille could not put
on
a be t t e r
show.
This cr iminal j u s t i c e
system
as everyone loves to
ca l l it
cons i s t s
of three bas ic p layers : a
judge,
a
prosecutor and
a defense lawyer .
Each has
a
sepa ra t e
ro le
and a d i f f e r e n t s e t of ru l e s . The prosecu to r ' s ro le
i s to
convict and
punish .
They wrap themselves
in
a cloak of
se l f
r igh teousness
and
b l e a t and paw with a l l
the
vigor
of a bu l l
moose
in
ru t t i ng
season.
I t i s amazing to watch a prosecu to r who has t r ave led
extens ive ly in Spring Branch
as
a ch i ld give a j u ry the
benef i t of h is l i f e exer iences .
I t
i s even more amazing to
watch a
person
whose pimples have
bare ly
dr ied , make
recomendations on punishment to an e ld e r ly judge,
knowing
t ha t the judge wil l usua l ly fo l low the recomendat ions.
I f
the
medical profess ion operated
as
we
do,
the
i n t e rns
would
do
a l l the surgery
and the
s t a f f
doctors would
drop by to look
a t the scars
or
autopsy
r epor t .
10
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I
I
have
always wondered
what the
world would
have
been
l i ke i f it had been crea ted by prosecu to rs .
The Bib le says
tha t l i g h t and darkness were
crea ted the f i r s t day.
suspect
t ha t i f pro
sec to r s had been around on t ha t f i r s t
day, they would
have c rea t ed
j a i l s
as soon as t he i r beady
littl eyes became ad jus ted to the
l i g h t of
day. They
would
never
have
permit ted a night to come along
withou t
having
j a i l s
and
the
Texas Department
of
Correc t ions . So
I
imagine
t ha t the
rehab
and TD
would
have
s l ipped
in the f i r s t
day,
j u s t a f t e r
day
l i gh t and
well
before n i gh t fa l l .
On the second day when God was busy separa t ing the
water
from
the
land , the
prosecutors would
be feverously
working on a bunch of s tup id laws. This way, they could s e t
up a system to con t ro l
and
be the b ig bosses of anything
t ha t
God l a t e r
crea ted .
They could , fo r example,
make
a
d i s t i nc t ion between being drunk and being s toned. Alcohol
could
be
the accepted drug
and
mari juana ,
t h a t well
known
corruptor of youth,
v i rg ins , and McLennan County
Di s t r i c t
Attorneys ,
could
be
aga ins t
the
law .
They
could
a l s o
crea te t ha t
s t range form
of pe r ju ry
t ha t
gran t s immunity
to
a l l narco t ic
of f i c e r s and pol i ce of f i c e r s who
l i e
under oath
for a good cause .
On
the
t h i rd
day when God crea ted
gras s , herbs ye i ld ing
seed and
f ru i t t r e e s
ye i ld ing f ru i t , t he re would be a big
f lap .
The
prosecu to rs would
not s i t
still
and permi t
t h a t
green
s t u f f
ca l l ed
gra ss to r e a l l y be gras s . Mushrooms t ha t
could
be
boi led i n to weird t eas t ha t make one
see
in the
dark, coca l eaves t ha t could
be r e f ined in to
boundless
paranoid energy, and any other substance t ha t could
make
one
high, would not have escaped t h e i r probing
eyes
or sn i f f i n g
noses .
The
lone
except ions
would be
bar ley
and
othe r g ra ins
tha t
could be
used
for
beer
and booze.
There
could be no
prosecutors
without
s i lve r bul le ts and end less discuss ions
of
hangovers .
Day t h ree would have requ i red more changes. A l o t
of
the
f ru i t t r e e s yei
Id ing
f ru i t
a f t e r hi
s
kind and
' ' 'herbs
yie ld ing
seed
a f t e r
h i s
kind would
have
been rep laced
with
s o f tba l l diamonds. Bal l parks are a damn s igh t
more
important than a bunch of f lowers
and
apple t r e e s . Besides
t ha t ,
t h i s
herb
bus iness smacks of
hea l th food
s to r e s ,
which
smacks of h ipp ies , which smacks of
unconvent ional
l i f e
s ty les where people l i ve
and
l e t
l i ve and
mind t he i r own
bus iness . That ' s some
dangerous
s tu f f .
People l ike
t h a t
c a n ' t be
con t ro l l ed .
Bal l p a r k s , on
the
other hand, are a l l
American . They i n s t i l l charac te r
and
t ha t compet i t ive
i n s t i nc t . They bui ld a good
vocabulary as one l ea rns
such
th ings as
t h a t ' s
the way to go and come
on,
put it
r i g h t
in
he re . Bal l parks lowers one ' s Q about t en poin t s a
v i s i t .
Bal l parks
are
a l so good places fo r guys
to
cop a
feel by
p a t t i n g
each other
on
the
r e a r
end. Stea l ing a
phrase from the Bib le , it
could
be sa id t ha t the t h i rd day
brought
ba l l parks
ye i ld ing f r u i t s a f t e r
h i s
kind .
8/11/2019 1986 October Docket Call
12/48
n
the four th day i f God
had
l imi ted the c rea t ion
to
s t a r s
and
the moon,
the prosecutors
would
have
been a su r ly
l o t . They
would
have sulked and pouted. Why moons and s t a r s
are the fodder fo r poe t s and wri t e rs of romant ic songs. The
heavenly bodies play
no
par t
in the grim
bus iness of
punishment.
I t
would probably have been
about t h i s t ime tha t
the
prosecutors
would have s t a r t e d whining
for
something to
be crea ted tha t could be put
in
j a i l . The world, even
i f
it
was
only
going on
i t s
four th
day, had to be
depress ing i f
the re was
nothing
or no
one
in
it
to be bu l l i ed
or
bossed
around.
The f i f t h
day
would have been much more pleasant s ince
it was the day for making
f i sh
and b i rds . Prosecu to rs would
have saved God a l o t
of t roub le .
The
only
f i s h t ha t would
have been crea ted would have been those tha t could
be
snagged
with a hook, then dragged around, and mounted on the wal l
in
l i v ing p l as t i c . I f you can l t
shoot
it on the wing, then
don ' t c rea te
it
would have
been
the ru le for bi rds .
Prosecutors are seldom found
among
t he throngs
of b i rd
watchers
or whale
gazers .
Saving
the whales i s not
a
pr io r i t y
i tem
with
prosecu to rs .
I f
you c a n ' t
put
it
in
j a i l ,
ca tch
it
shoot
it
or
pat it
on
the
rump,
why
have
it
around?
The s ix th
day
was
the big one.
Animals
t ha t could be
hunted
down and shot and
s tu f fed
were crea ted . This i s
the
s t u f f
t ha t t e s t s the measure
of
a man. One can
ge t
out
in
na ture
and
s t a l k
dumb animals with high
powered
guns and
k i l l them.
The
bes t th ing
is
t ha t the animals
had
no guns so
they could
not
shoot back.
The
s ix th
day was
made
for
Hemmingway
and prosecutors .
nd
bes t of a l l ,
man
was
created . Hot dog,
now
there i s something t ha t could
be put
in j a i l .
The
s ix th
day would
not
have been
without
cont roversy .
For
one
th ing ,
the
prosecutors would
have balked
a t t h i s f i g
l ea f
business .
Fig
l eaves would
be
acceptable i f
they came
in
double kn i t or
polyes ter and
i f t he i r color was
any shade
or navy blue
or
black. Prosecu to rs
could
never
wear
f i g
leaves - -
t ha t
would
not
match t he i r wing
t i p
shoes
or penny
l oa fe rs . But as ide from t h i s
minor t i f f
over
proper a t t i r e ,
the crea t ion
of
man
would
have gone
smoothly.
The seventh day
would have
gone
pre t ty much
as p lanned.
Prosecutors adapt
to
res t ing l i ke the big b ra ined dolphin
adapts
to the sea . Prosecu to rs have
wri t t en
the Kama-Sutra
of s leeping,
they
know
102 pos i t ions
to s leep . This i s
why
they
have
the
background
to become judges , most
have years
o f prac t i ce a t s leeping in publ ic .
Thus ends t h i s poss ib le theory of c rea t ion . I t
i s
fool ish but no
more
foo l i sh
then th inking tha t the
cr imina l
j u s t i c e system bel ieves Art i c l e 2.01 of the Code of
Criminal Procedure,
where
it
i s
wri t t en :
I t s ha l l be the
primary duty of a l l prosecut ing
a t to rneys ,
inc luding any
spec ia l prosecutors , not to conv ic t , but to see t ha t j u s t i ce
i s done. They s ha l l not suppress fac t s or sec re te witnesses
capable of
es tab l i sh ing the innocence
of
the accused.
12
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y Judge h e ~ Z y Hanoook
ourtTales
A
few
e d i t i o n s
ago
of the DO KET CALL and Court T a l es ,
Oakwood Cemetery, loca ted in
Huntsv i l l e ,
was mentioned as
a
good
place fo r
an a t to rney and hi s fami ly
to v i s i t .
Oakwood
Cemetery
i s
the
f i n a l
r e s t i n g
place
of
Sam
Houston.
There
i s
ano ther i n t e r e s t i n g place fo r
an
a t t o rn e y ' s fami ly
to v i s i t j u s t
a
few
hours from Houston Independence , Texas .
Independence has
the grave
of Mary Lea Houston ,
the wife
of
Sam
Houston.
Sam's
f a t h e r - i n - l a w
was
a s t rong wi l l ed Bapt i s t preacher .
Now Sam
was the head of the Texas Army, Pres i d en t
and
Governor of
Texas ~ u
once
he
went away to l i v e
with the
In d i an s . I t i s
s a i d
he s t ayed drunk fo r
2
years while l i v in g with the redmen.
The
Ind ians ca l l ed
him t h e Big Drunk . The
marr iage of
Preacher
L ea ' s daughter , Margare t ,
to
the
l i k e s
of
Sam
Houston must have
caused
much d i s cu s s i o n
around
Independence .
Sam
died before
hi s
wife , Margaret Lea.
When
he
died ,
Margaret moved in 1850
to
Independence , Texas , west of
H u n t s v i l l e . Her mother l i v ed t h e r e . Margare t d ied of Yellow
Fever in 1867.
She
was
bur ied
in
t h i s smal l
town
next to her
mother .
One
might s p ecu l a t e
she
was
not l a i d to r e s t
next to
Sam
in Huntsv i l l e because the t r an s p o r t a t i o n
of
a
Yellow
Fever
i n f ec t ed body by
wagon
a l l the way t o H u n t s v i l l e would
chance
to
spread the
di sea se .
Sam's
mother- in - law, Nancy, had an e c c e n t r i c i t y about d ea t h .
She
spen t
some
t ime
plann ing
her
fu n e ra l .
She had
the
l i d
of he r
cask e t made with
gla ss
so her face could be seen as she l ay
t he re .
While
the
caske t
was
in s to rage wai t ing fo r u se , Mrs. Lea
used it to s to re co f fee
and
sugar . The
s l aves
were
so
sca red
of
the
c o f f i n
with the g l a s s
l i d t h a t
t hey s t ay ed away
from it
and
d i d n ' t s t e a l any co f fee or su g a r . Mrs. Lea died in 1850
and
she
l ay
in s t a t e i ns ide the g l a s s - l i d d e d
co f f i n
with a handkerch ief
over her
face .
The tomb of
Margare t
Lea Houston and her mother ,
Nancy
Lea,
can be
seen in Independence .
The
old home of Margare t
Lea
Houston i s l o ca t ed
in
the
town.
t i s
p r i v a t e l y
owned
but
can
be t o u red .
I 'm
s o r ry
t h a t
I
d o n ' t
know when the
house
i s open to the
publ i c .
Across the
s t r e e t from
the graves of Mrs. Houston
and
her
mother i s the
Independence
Bap t i s t Church. This i s one
of
the
o l d es t
es t ab l i shed Bap t i s t churches in
t h e
s t a t e .
Probably , one
of
i t s
e a r l i e s t p as t o r s was Reverend Lea, Sam's f a t h e r - i n - l a w .
Later , George Washington Baines preached h e re .
He
i s the
g r e a t
g ran d fa th e r of former
p re s i d e n t ,
Lyndon Baines
Johnson. The
church has
a museum
in it t h a t i s open to the pub l ic Wednesday
through Saturday from 10 a.m. to
4
p.m.
and
on
Sunday from
p.m.
to
5 p.m.
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Down
t he road
from the church i s t h e remains of
Baylor
Female
Col lege . This co l l eg e
was
organ ized in 1865 and was
t he
fore runner to
the presen t day
Mary Hardin-Baylor Col lege
l o ca t ed
i n Be l ton .
There
i s
a
c reek t h a t
separa ted t h i s women's co l l ege
from
t he
men 's school and
it
was
a f f e c t i o n a t e l y known dur ing t h a t
day
as the River Jordan .
La te r ,
t he men 's
campus moved
to
Waco
and
became t he p resen t
day campus of
Baylor
U n i v e r s i t y .
There a re other h i s t o r i c a l s i t e s in Independence .
t
won ' t
t ake
long
to see
them
e i t h e r
because
little
r e s to r a t i o n
has
occurred .
For
i ns t ance , t h e re a r e no markers in
t h e town square
saying t h a t
Hood's
Br igade
was
formed here e a r l y in the c i v i l
war.
Some remains of the old Blanton Hote l still s t an d . o
markers say the Fa th e r s of Texas
s tayed
a t the Blanton whi le
wri t ing t h e Texas
D ec la ra t io n
of
Independence
down
t he
road a t
Washington on t he
Brazos .
(Thanks to Myra Hargrave
McIlvain and
her book, Texas
Auto
Tr a i l t he So u th eas t , 1982,
fo r
prov id ing
some of t h i s h i s t o r i c a l
i n fo rma t i o n . )
Independence
i s a t
the
i n t e r s e c t i o n
of
Highway
50 and
390.
Wait u n t i l
Apr i l
when t h e bluebonne t s
a re
in bloom to dr ive to
Independence.
Travel nor thwest
on
Highway 290
toward
Brenham.
Turn on Highway 1155
and
d r iv e th rough the o ld town
of
Chappe l l
H i l l .
There
are
i n t e r e s t i n g
an t ique
shops , r e s t au r an t s
and a
museum here .
North
of Chappe l l H i l l you w i l l dr ive th rough
r o l l i n g h i l l s t h a t w i l l be covered wi th b luebonne t s dur ing the
season .
Have you
not iced an i n f l u x of l awyer
j okes r ecen t l y ?
Here
i s an example A docto r , an
a r c h i t e c t
and a
lawyer
went bi rd
hunt ing .
Each
brought a
b i rd dog.
The
d o c to r ' s b i rd dog was
named
Old
Sca l p e l . The a r c h i t e c t ' s
dog was
named Old Goth ic
and
the
l awyer ' s
dog was named
Old
Subpoena .
The
th ree hun ters
came upon
a
p i l e
of
old
cow
bones in the
woods.
The
doctor
s a id ,
watch
t h i s . Sic
'em, Old
Sca lpe l . And
t he dog
jumped
i n to
the
middle of
the old bones and quick ly
a r ranged
them i n t o a p e r f e c t
sk e l e to n of a cow. The a r c h i t e c t s a id , t h a t ' s noth ing .
Watch
t h i s Sic 'em
Old Goth ic . The a r c h i t e c t ' s
dog a r ranged
the
bones i n t o a b e a u t i f u l b u i ld in g - l i k e
s t r u c t u r e .
The lawyer sa id , you
haven ' t
seen
anyth ing
ye t . Sic ' em, Old
Subpoena .
The l aw y er ' s dog b i t the
o t h e r
dogs
on
t he
hee l ,
grabbed
all
t he bones
and ran i n t o
t he
woods.
What
happened
to the
aggie jokes?
Maybe
t h e re
i s
a
r a t i o
between
t he
success of
t h e ag g ie ' s f o o tb a l l
team and
t he number
of
aggie
jokes . And then a
r a t i o between
the agg ie
j okes
and
the lawyer
jokes .
When t h e re
are
fewer agg ie j okes
t he re
a re
more
l a
wyer
jokes . Since the agg ies
won
the co t t o n
bowl
game l a s t season and a re h i g h l y - r a t e d t h i s season look out fo r
more lawyer
jokes .
That
i s
a l l
fo r
Cour t Tales t h i s e d i t i o n .
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WH T W S THE JUDGE
TRYING TO DO
y
avid
Mitaham
In the Houston Post , Tom Kennedy posed the
question, Just
what
i s
th i s Judge t rying to
do? .
e purported to
reveal ,
how
pol i t i c s work
a t the
courthouse. Throughout his essay, he re l i ed on
incomplete, misleading
information.
This i s a
response
to Kennedy's analysis of i ssues
involved
in
Judge Woody
Densen's contempt
proceedings
against cer ta in County Off ic ia l s .
Judge Denson was t rying to see tha t S ta te
Law
was
proper ly
obeyed
by the
government of f ic ia l s
entrusted with the execution
of
lawful orders
from
a
Dis t r i c t
Court . In
the face of subs tan t ia l and
immediate pol i t i c a l
heat ,
Judge
Densen took a
principled s tand for
the
Rule of
Law over
pol i t ica l
expendiency.
The controversy revolved around compensation
paid to
cour t-appointed
counsel
for the defense of
indigents
accused
of felonious
conduct.
The
appl icable
s t a t e law is Article
26.05 V.A.C.C.P.
en t i
t l ed , Compensation of
Counsel Appoin ted
to
Defend . The Code s ta tes tha t
the
money, shal l be
paid from
the
General fund
of the county ,
according to cer ta in
specif ic ,
l egis la t ive ly
mandated
provisions.
A
lawyer i s to paid,
for
each day or f r ac t ional par t thereof
in
Court
represent ing the
accused, a
reasonable fee to be
set
by the
Court , but in no event less than
f i f ty -do l l a rs .
That in
a
nutshel l
i s
the
Law
of
the
Code:
A
reasonable
fee
se t by the
Judge,
no
less
than
f i f ty-dol la r s .
Last Spring,
a
group
of
Harris County
Dis t r i c t Court Judges act ing under the
name,
Board
of
Judges ,
promulgated an
appointment fee
schedule with a
bui l t - i n
maximum per cour t
appearance
to
be paid
cour t-appointed counsel .
This
policy
was
placed
in to being by
a
peer group
vote.
The problem with th is new
policy
of
the
Board
of Judges was tha t i t clashed with the
dic ta tes
of Art ic le
26.05. The
Legislature
intended
tha t the Judge on
the Bench
responsibly
to
consider the f ac ts
and circumstances
of
each
case
and se t a reasonable fee to be paid to
cour t-appointed counsel . There is
no provision in
the
Code
allowing
a
Judge to abdica te th i s
r espons ib i l i ty to
the Board
of Judges,
the
Consensus of
Peers ,
or anybody e l se .
In July,
the
new
policy
of the
Board
of
Judges went in to e f f ec t and County Audi t o r , Joe
Flack, was di rec ted to
a l te r
the character and
dispos i t ion of any Dist r ic t Court Judge ' s Or
tha t did not conform to
the
nLaw of
the
Pac
Judge
Densen
continued to operate
under
the
Law
the
Code by se t t ing reasonable
at torneys
fees
work
done
in
his
Court . Auditor Flack
be
rout inely re jec t ing Judge Densen's f igur
refusing to comply
with
the
Court 's orde
Contempt
proceedings followed wherein Audi
Flack pled to the Court tha t he was caught betw
Judge Densen's
orders and the decree
Commissioners Court,
which recent ly
adopted
Law
of the Pack.
The Commissioners
Court should be mindful
the 1975
opinion of
the
State Attorney Gene
number H-499, which s t a t e s ;
The Commissioners Court of
a
County
i s un
a
duty
to
budget
and
order paid
the
amount
any reasonable
at torneys fee properly
se t
a Criminal Court Judge
pursuant
to t
Art icle (26.05 of
the
Code of Crimi
Procedure)
for the representa t ion
of indig
defendants .
A
t r i a l Judge 's order can be overturned only
showing
tha t t was so arb i t ra ry , unreasonab
and
capric ious as to
be
to
an
abuse of
discret io
Prior to
Ju ly
1986, the Auditor paid a l l
Judge Densen's orders for reasonable at torn
fee. Upon advent of
the
Law of
the
Pack , Ju
Densen's
orders are
now
construed as unreasona
per see This
i s
the
prevai l ing pre tze l log ic ,
t
offends the Code's requirement tha t the
s i t t i
Judge
se t
a
reasonable fee. The i ssue , c lea r ly
whether
County
Government wil l follow the law
obey
a proper
order of
a
Dis t r i c t Court.
I t may be a
good
idea to l e t a
Board
Judges decide
the
schedule for
cour t-appoin
fees ,
with
a locked in maximum.
However,
to
th i s , Sta te Law must be amended. Th i s invol
more hass le
than a quick
vote
of f i f t een Judges
a
board
meeting,
but
tha t i s
the proper recours
In
years
past , a maximum
fee
was
se t
by
s t a tu t e which
preceeded
the present
s t a t e
embodied in
Art ic le 26.05. After
consider ing
matter , the Legislature spec i f i ca l ly determi
tha t
the
Judge make
the
decision
as
to
reasonable fee and re jec ted
a
proposed
schedule remarkably s imi lar to the Law of
Pack .
Having pract iced before Judge
Woody
Densen
a
Prosecutor and
as a
Defense Attorney,
I
a t t
tha t he is dedicated to providing
a
f a i r t r i a l
15
8/11/2019 1986 October Docket Call
16/48
part ies. He i s Board cer t i f i ed in Criminal
As
a
State Representative, he helped draf t
Texas Penal
Code. One of the most act ive t r i a l
in the State the
248th
disposed of more
than any other Harris
County
Court
in
1985. Judge
Densen s
ordered
fees
were average
re la t ive
to the o ther
Courts in the
county. Aside from his
xpert
knowledge
of
the
law
and
his
demonstrated
will ingness
to
work long hours, Woody
Densen
manifests
what is most important
in
a judge -
personal in tegr i ty
and courage of his convict ions .
Waist-deep
in
the treacherous water of an election
year, the Judge stands for
what
he
believes
i s
r ight under the law,
regardless of
the
poli
t ica l
r isk. The
Rule of Law
and
the People of Harris
County
were
well served by
the recent principled
actions
of Judge Woody Densen.
Editors note:
David
Mitcham
is a former Harris County Assistant
Distr ic t Attorney Board Cert i f ied
in
Criminal Law
by
the
Texas Board of
Legal
Special izat ion and a
Director of the Harris County Criminal Lawyers
Association.
Let s
Hear
From YOU
e want to hear from youl Please
send us your ideas or
comments
regard
ing
issues of
in teres t
to the
criminal
defense
practioner
and please l e t
us
know changes in address and telephone.
e welcome
your
part ic ipat ion I
He Elect
Judge
JiDlmie
DUNCAN
County Criminal
Court at
Law
No.3
29 Years
Dedicated
Judicial Service
H
s
T u D
o
R onge
Rusty ill
6 I 4
R
( H
M
o
N 0
HO U S TO N
T E X R S
7 7 0 0 6 5 455 8
Paid For By
Judge Jimmie Duncan Appreciation Committee
Gerald Payte, Treas.
12 11
Prado Wood
Cypress, Texas
77429
16
8/11/2019 1986 October Docket Call
17/48
CJ ig,n n o ge
isi"
11s
,.
fiRST
COURT
Of APP ALS
By
H e n ~ y
L
B u ~ k h o l d e r
Decisions
from August 13
to
September
10, 1986.
Robert Preston Gaddis v. Sta te , No. 01-84-656-Cr
STATE'S
DWI
JURY
ARGUMENT, TO THE
EFFECT
THAT
DEFENDANT-DID NOT
TAKE THE
BREATH TEST BECAUSE HE KNEW IF HE DID THE GAMF. WOULD BE
OVER
HELD REVERSIBLE
ERROR. YOU
NEED
TO
READ MTD
STUDY
THIS ONE.
Defendant
was charged with
DWI. The information
al leged only
t he f i r s t s t a tu to ry t heory , i . e . ,
no t
having the normal use o f
mental /physical facul t ies . During
gui l t / innocence phase of t r i a l ,
the
prosecutor
argued
tha t
the
defendant
did
not
take
the
breath
t e s t because i f he did he knew the game would
be
over.
The Cour t o f Appeals he ld
t h i s
to be improper argument .
Speci f ica l ly , the
Court reasoned
tha t (1) there
are now
two
ways
to
commi t DWI,
(2) t h e r e was
no
ev idence in t he record t h a t the
defendant was .10 or more, and (3)
therefore
the argument was not
only ou t s ide t he record , bu t
argu ing
an unplead t heory o f
l i ab i l i t y .
WHY THIS CASE IS
IMPORTANT.
This case
i s
even
more
impor tan t fo r ano the r reason. The
C o u r t
found
t h a t t h e
p r o s e c u t o r ' s
a rg u m e n t was e x t r e m e l y
pre jud ica l ,
and not very proba t ive .
The
Cour t noted t h a t .10 i s
no
longer
a presumpt ion o f i n tox ica t ion , bu t on ly a
sepa ra t e
means of committ ing the crime. Apparently
the
Court i s reasoning
t h a t
s ince .10
i s no l onger a presumpt ion o f i n tox ica t ion , no
infer rence can be made from the decis ion not to take the chemical
t e s t in rega rds to t he
o t he r
way
o f commit t ing the of fense .
THEREFORE, YOU SHOULD OBJECT
TO THE
EVIDENCE SHOWING
THAT THE
DEFENDANT
REFUSED A CHEMICAL
TEST,
ON
THE GROUNDS THAT
THE
PREJUDICAL
VALUE OUTWEIGHTS THE
ROBATIVE
VALUE.
As
you know, by
s t a t u t e ( A r t i c l e 6701L-5 V.A.T.S.) t he
de c i s ion
no t
to
submi t
to
a
chemcia l
t e s t
i s
a dm is s ib l e be fo re
t he jury . The reason fo r i t s admiss ion i s
to
show the g u i l t y
knowledge o f
the defendan t ( tha t even he
knows
the
game i s
over ) .
I f t he
prosecu t o r ' s
argument
to t h i s e f f e c t
i s e r ro r , t
i s only because
t he r e f u s a l
i s
no t
sub j ec t to t h i s i n f e r e nc e o f
gui l t . Therefore, ob jec t to the evidence, not l a t e r down
the
road
to
the argument.
QUESTION: In t h i s case, there was no exper t tes t imony
tha t
a p e r s o n
w i t h
.10 in
h i s b lood
i s i n t o x i c a t e d .
Would
t h e
prosecutor
have been outs ide
the
record i f t h i s fac t had
been
in
the
record?
October
1986
SD
1
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18/48
8/11/2019 1986 October Docket Call
19/48
should
gr an t
PDR
i n o rde r to a s s i s t t he
Cour t
o f Appeals
in
f igur ing
out
what
it
meant. Remember, you must t e l l
the
Big Court
why
it
should hear
the
case
FOURT NTH
COURT
O
APP ALS
Decisions
from
August
13 to September
10,
1986.
Calvin
Louis Miguez
v. Sta t e , No.
14-85-403-Cr
FOUR
SEPARATE
ATTEMPTS AT THREE
SEPARATE LOCATIONS
HELD
SUFFICIENT
DUE
DILIGENCE
TO
TOLL
STATUTORY
SPEEDY TRIAL TIME.
Probably
t he
on ly t ime
you
can
ge t
a
case
d i s m i s s e d
on
s t a t u t o r y speedy tri l
grounds
( A r t i c l e
32A.02 Texas
Code
o f
Criminal Procedure) i s
where an
indictment , informat ion
or
a r r e s t
warran t i s i s sued , and t he s t a t e does not a r r e s t t he
defendan t
wi th in t he proper t ime per iod . Where t h i s
happens ,
t he s t a t e i s
not ready as
a
mat t e r o f
l aw,
and
must show t h a t
one
o r
more
pe r i ods of de lay
are
p rope r l y
exc ludable . The
most
popula r
e xc l us i on i s t h a t t he
s t a t e has used due d i l i g e n c e
in
l o c a t i n g
the
defendant.
Here , Harr i s County She r i f f ' s Depu t ie s t r i e d
four
t imes a t
t h ree
loca t ions
to a r r e s t t he
defendan t .
Each l o c a t i o n was
a
plat::e
where the
defendan t
was "known" to hang
ou t . No
luck in
f i n d i n g t h e d e f e n d a n t , b u t t h e
C o u r t
o f
Appea l s
h e l d
due
di l igence
in
t ry ing .
This c a s e d e m o n s t r a t e s t h e sensitivity o f f a c t s ,
and
judgment
o f
the
J u s t i c e s o f t he Cour t
o f Appeals ,
in measur ing
the
fac ts
cons t i t u t ing "due di l igence . The major i ty of the Court
d iscoun ted the
fo l lowing f ac t s : 1 ) t he
defendan t had
been
r e c e n t l y
paro led , (2) t he pa r o l e r e c o rds m i s t a ke n l y showed t he
defendan t to
be
an
abscounder ,
(3) t he
defendant ' s
l a s t name
was i nco r r ec t l y
s p e l l e d
on
t he i nd i c tmen t , and
(4) t he depu t i e s
did not know t ha t
the
defendant was regula r ly
v i s i t i n g
h i s paro l e
of f icer .
The
major i ty
of the
Court held
t ha t
the
four
at tempts
a t
th ree
loca t ions was su f f i c i en t
due di l igence .
The s t a t e was not
c ha rge d
w i t h
t h e
e r r o n e o u s
s p e l l i n g
o f
h i s name
on
t h e
ind ic tment as wel l
as
other bureaucra t ic snags."
The
d i s s e n t i n g
op in ion ,
by J u s t i c e r E l l i s ,
p o i n t s
t o t hes e
very f ac t s to show l ack of due d i l igence .
Leroy
Jones
v. S t a t e ,
No. 14-85-553-Cr
RIGHT TO
USE FORCE
TO
DEFEND
PROPERTY
DOES
NOT
EXTEND
TO
RETRIEVING
YOUR
MONEY
AFTER BEING THE
VICTIM
OF
A DISHONEST
DOPE
DEAL. NO MORE ARMED SELF-HELP TO ENFORCE RIGHTS
IN
DOPE
rRANSACTION. P1PLICATIONS
~ H N
BOGGLING
October
1986
SU
3
8/11/2019 1986 October Docket Call
20/48
As you
know,
fo rce may
be
l a w f u l l y used a g a i n s t a second
person
i n o r d e r to
p r o t e c t
your p r o p e r ty . S ec t i o n 9.43 Texas
Penal
Code.
This
i s
a
r i g h t deep f e l t by
ll
r i g h t t h i n k i n g
Texans.
A
se r i o u s i n ro a d d i l u t i n g
t h i s
r i g h t was
made
in
t h i s
case .
Defendant
in
t h i s case
goes ~ o w
to
h i s
neighborhood quas i
qua l i ty pharmacut ical r e t a i l e r to
purchase
h i s weekly
supply o f
keeps you runn ing .
A.fter
making t h e
t r a n s a c t i o n
and l eav ing ,
de fendan t d i s co v e r s he has been
given
someth ing o t h e r t han t he
r ea l th ing.
Piece
in
hand,
defendant
exerc ises se l f -he lp
remedy
(See
D.C.C.)
and
g e t s h i s money back.
On
appea l , t he Cour t h o l d s th a
t
By
no
s t r e t c h o f t h e
i .mag in a t i o n c o u l d
t he
s t a t u t e (Sec . 9 .43) be
r e a s o n a b l y
i n t e r p r e t e d
to p r o t e c t
a
purchase r o f dope who a t t e m p t s t o
r e t r i ev e
hi s money when he discovers he has been duped
ins tead
o f
doped. Remember,
if
t h e y can do t h i s to
t h i s p e r s o n ' s r i g h t
to
get h is proper ty back, then they
can
do
it
to anyone.
IF IT IS
NOT IN
THE
APPELLATE
RECORD
YOU'LL
NEVER GET
REVERSIBLE
ERROR. PUT WHAT
THE
TRIAL
COURT KEPT
OUT IN
SOMEWHERE.
This
i s a n o t h e r example o f
t h e
need
to
make a r e c o rd as to
t he
ev i d en ce the tri l c o u r t kep t ou t .
On
s t a t e ' s
case ,
ll
t he
bad
s tu f f the defendant
sa id
upon h i s
a r r e s t
comes out . On cross ,
de fense
counse l wants t o g e t ll t h e good s t u f f t h e d e f en d an t
s a i d
on
a r r e s t ( l i ke ,
a
r e a l l y
good
e x p l a n a t i o n fo r why he
was
where
he
was
when
he
was) . The
s t a t e
o b j e c t s a bunch
o f
t i m e s ,
the tri l r u l e s
a
bunch o f
t ime ,
and
t he
d e fe n d a n t
walks
away
w i t h
a
record
which
f a i l s to show,
e i t h e r
t h rough
an o f f e r o f
proof , o r
Q
A out o f
t he h ea r in g o f the ju ry ,
p r e c i s e l y
what
the
good s tu f f
the defendant sa id
~
On
ap p ea l
t he de fense counse l
a s s u r e s
t he Co u r t
a s
to
what
the
good
s t u f f
was.
The
Cour t
h e ld
it
was
wrong
wrong wrong
fo r
t he tri l c o u r t t o bar the admiss ion
o f
the
good
s t u f f . The
rea sons , t ake your p ick : r e s g e s t a e o f the a r r e s t , r u l e o f
opt iona l
completeness,
or the I t Ju s t
Makes
Sense Doctr ine. In
any
even t , de fendan t
l o se s l o se s l o se s b ecau s e t h e
a p p e l l a t e
record does not show
what (1)
t he o f f i c e r
who i s t e s t i f y i n g
to
t h e s e s t a t emen t s
would
have
sa i d
on c ro s s ,
o r
(2) th rough any
other witness ( inc lud ing the
defendant)
what was said .
NOTE: Do not be ha rd
on t h e
counse l a t tri l who did no t
make a record
o f
t he a l l e g e d l y
good
s t u f f
t h a t
t h e d e f en d an t
sa id . Perhaps
a
r eco r d o f
what
the
d e fe n d a n t
sa i d
would
show t h a t
it was not
so
good a f t e r a l l ,
and
t h e
de fense counse l
was in
a
f a r
b e t t e r
p o s i t i o n
h a v i n g
to
make
it
up
r e v e a l
wha t
t h e
exp lana t ion
was
for the f i r s t on
appeal .
Kenneth
Lamar
~ v a g e e
v. Sta te ,
No.
14-84-S18-Cr
REPLACEMENT VALUE CAN BE USED TO
DETERMINE
VALUE OF
ITEM
TAKEN
FOR
PURPOSE
OF
GRADE
OF
OFFENSE.
Oc
t o i l e r
) 'JllG
;IJ
4
8/11/2019 1986 October Docket Call
21/48
--
At
t r i a l
the owner
of s to l en fu rn i tu re t e s t i f i e d to
what
would cos t
to
rep lace i tems.
Defendant argued
t h a t replacemer
value
can
be used only
where
s to l en i t ems
have
no market v a l u ~
Court o f
Appeals r e j e c t s t h i s
argument,
not ing
t h a t
replacemen
value i s
au thor ized by s t a t u t e ,
if market
value
cannot
be r ead i l y
ascer ta ined . Note t h a t h ere s to l en fu rn i tu re was never recovered,
so
t h a t it was imp o s s ib l e f o r
owner
to d e t e rm i n e t h e
market
value .
Gary Donnel
Sidney
v. Sta te , No.
14-84-733-Cr
Defendant
ge ts
i n ~ o
f i g h t
with compla inant .
S ta t e ' s
vers ion
i s
t h a t de fendan t k i cked
and
h i t c o m p l a i n a n t w i t h
fists
u n t i l
compla inant
expired. De fendant '
s vers ion
i s t h a t he pushed
the
compla inant
only
once,
and
then
h i t compla inant
only
once, and
then
the
compla inant f e l l and
h i t
h i s head on
the
curb ( l ike in
the movies).
FISTS OF FURY
STATE
NOT
AUTOMATICALLY
ENTITLED
TO RETREAT CHARGE
WHEN DEADLY FORCE
IS
EMPLOYED
WITH W ~ P O N S
WHICH
ARE
NOT
PER SF
DEADLY WEAPONS
TRIAL
COURT
SOCKED
WITH REVERSIBLE
ERROR
There
i s
no quest ion but t h a t
defendan t ' s f i s t s
did r e s u l t
in the
death
o f the
compla inant .
However,
the
i s sue
i s
whether
the fist were dead ly weapons" as such .
A dead ly
weapon
i s
a
weapon
which
(1)
i s
des igned
to cause d e a t h / s e r i o u s
b o d i l y
in ju ry , o r (2) i s in tended to cause
dea th / se r ious bodi ly
in ju ry .
Since the defendant dispu ted
t ~ e
i n t en t ,
a
f ac t
i ssue
was
ra i sed .
The
Court o f
Appeals
handled t h i s dec i s ion
with
kid
gloves .
The
Court
began with
the genera l
law: where
nondeadly
fo rce is
used,
a par ty i s not
under the duty
to r e t r e a t . However,
where
deadly force i s used, the par ty
must
a t t emp t
to
f l e e and f i gh t
another day.
In
t h i s
case, the
Cour t held t h a t
it was
er ro r
for the t r i a l
cour t to
charge
s imply
t h a t the defendant had
a duty
to
r e t r e a t
before using
h is
deadly f i s t s . Ins tead , the ju ry
should have been
i n s ~ r u c t e d to
f i r s t
determine whether the
defendan t ' s
f i s t s were
deadly weapons as a
mat te r of law, and then
apply the
appropr ia te
law o f s e l f defense .
TKO
to the t r i a l
cour t
on
t h i s
one.
~ i c h a e l
Rajski v.
Sta te ,
No. 14-85-4l2-Cr
IN ORDER TO
PRESEVE
ERROR ON
APPEAL
~ 1 U S T INTRODUCE EVIDENCE
AT
A
A
mot ion to s e v e r jo ined d e fe n d a n t i s to
be
made under
Art
i c
1 e
36.09
Texas
Code
0
f
Cr
i m
na
1
Pro ced u re .
Th
i s
ca
se
rea f f i rms the
language
o f
the
s t a t u t e ,
which requ i re s not only a
wri t t en
motion fo r severence , BUT
EVIDENCE
HEARD AT THE
PRETRIAL
~ \ O T I O N AS
WELL
In
othe r
words,
when
your motion
i s car r ied to
the day of t r i a l , and you a re rushed
rushed
rushed to hear them
a l l before
lunch,
and the ju ry
panel
i s coming in , yes
you
must
put
on
ev idence .
Also, the Cour t notes t h a t
a
defendant
has a
heavy burden o f
showing
prejudice
by the jo inder . So what e l s e i s new?
October ]986
s
5
8/11/2019 1986 October Docket Call
22/48
Somewhere e l s e in these case reviews, t h i s au thor harped
on
the f a i lu re of t r i a l counse l to
make
a good record o f what was
kep t out .
This
cas e i s an e x c e l l e n t example o f
e x a c t l y t h e
o p p o s i t e ~ a k i n g
too good
o f
a record as
to
what happened
a t
t r i a l . Read on.
In
t h i s case ,
the mot ion to s ev e r
sounded
a w f u l l y good
adverse
defenses by
defendants ,
l o t s
o f pre judice ,
the
spec tu re
o f
the
co-defendant
taking the
5th
and
s tay ing
of f the
s tand ,
and
i f only the
co-de fendan t
could be forced on the s tand, l o t s of
ex cu lp a to r y s t u f f w i l l come out )
However , t h e
Cour t
went
one
s t e p fu r the r , looked a t
t h e
ev i d en ce
p ro d u ced
a t trial
and
concluded t h a t co-defendan t ' s t es t imony would
not
have been a l l
t ha t he lp fu l , and
no
p re j u d i ce by the jo inder . May
be
t he re
was
a
good reason
why
defense counse l d id not produce evidence a t t r i a l
a f t e r a l l ?
)c t0uc:r ] 98 ) SlJ 6
8/11/2019 1986 October Docket Call
23/48
OURT
Of
CRIMIN L PPE LS
y atherine Greene urnett
THE
FIRST OPINIONS
FOLLOWING SUMMER
RECESS
WERE
DELIVERED SEPTEMBER 17th AND WERE OVER 500 PAGES
Rusty Leon
OSBAN NO 368-83 Opinion
on S t a t e ' s
Pe t i t i on
for Discre t ionary
Review:
Felony Thef t
Convic t ion
Affirmed
Judge Tom
Davis ,
9/17/86 [Dissent ing
Opinions
by Judges
Teague.
Cl in ton and
M
I
Je r]
SEARCH
AND SEIZURE
- -
DISCOVERY
OF
SMALL AMOUNT
OF CONTRABAND
IN
PASSENGER COMPARTMENT PROVIDED
PROBABLE CAUSE FOR
SEARCH OF
TRUNK
INITIAL
SEARCH OF PASSENGER AREA AUTHORIZED UNDER NEW
Y O R K _ V ~ E L T O N AS SEARCH INCIDENT TO VALID CUSTODIAL ARREST:
Fac ts :
Cop
saw
0
dr iv ing
Cadi
I
lac
in North
Dal
l a s ;
from
his
conversa t ions
with
o ther
o f f i c e r s
cop knew D's d r i v e r ' s l i cense
had been
suspended for another s ix or seven months. After
checking
t ha t Cadi I lac
r e g i s t e r e d
to
0,
cop s topped 0 and asked
to
see
his d r i v e r ' s l i cense .
0
produced
a
val id
Oklahoma
I icense , but rad io check confi rmed
t ha t
D's Texas I i cense was
under
suspension. 0
was then
a r r e s t e d
and
placed
in
squad ca r .
Cop cal led
wrecker
to impound
Cadil lac
and began to search
passenger compartment, f ind ing 3 Black Moll
ies
in the ashtt-ay
and $3,000.00 over t h e v i so r , in
t he
glovebox, on
t he
dash and
in
the
f ron t
sea t .
Cop took keys from i gn i t ion and unlocked
t runk , f ind ing 8
handguns,
4
o f
which
were
in t roduced a t t r i a l
and
i den t i f i ed
as s to l en
In
burgla ry severa l days
ear l
j e r .
[Although
not addressed in t he ma jo r i ty
opin ion ,
DISSENT a l so
po in t s out
t ha t
t he re
was
a l t e rna t i ve t o impoundment
because
0
t o ld
cop his
ex-wife
was t he re
and
could t ake the
keys and
cus tody
o f t he
car ;
o f f i c e r
re fused
to do
so because he
d i d n ' t
know who woman
was.1
Held:
The key ques t ion to be
asked
in dete rmining
probable cause
for a fu r the r search when an o f f i c e r d i scove rs a
small amount
o f
contraband in t he passenger compartment
o f
a car Is : Whether a
man o f reasonable caut ion
would be warran ted in t h e
be l i e f t ha t
o ther contraband I terns may be
located
in t h e
t runk
t I . e .
I s I t reasonable to assume
t h a t
an automobile dr ive r
or
passenger presumably
possess ing
an
I I
legal
cont ro l
led
subs tance
might
be
hiding more
of the
subs tance
in t h e
t runk ?
Major i ty f inds t ha t even I f discove ry o f Black Mol
l i e s
gave
probable
cause
for t runk search , ques t ion
remains whether
o f f i c e r
was j u s t i f i e d
in
sea rch ing passenger compartment in f i r s t
p lace .
then
reI
ies
on
New
York v.
~ e l t o n 453 U.S.
454
(1981)
for
p ropos i t i on
t ha t
search
inc ident
to va l id cus tod ia l
a r r e s t o f
pet-sons who are in
0 r
recen t ly have been in an
automobi le
extends
to t he e n t i r e passenger compartment and a l l con ta iner s [open
or
c losed]
found t h e re .
Although S t a t e had
never
reI
ied
on
Bel ton
to support.
va 1
i
d i ty o f search Be I t9n
con t ro
I s .
October
1986 SD
7
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24/48
~ ~ a r t e James Rathme I
1. No.
973-83
OpInion
on
S t a t e ' s PDR:
Pre-Tr ia l
Habeas Corpus
ReI i e f Denied
Judge
McCormick,
9/17/86
(Dissen t ing Opinions by Judges
Onion, Cl
in ton
and
Teague]
DOUBLE JEOPARDY OW
MANY
MANSLAUGHTER PROSECUTIONS LIE WHEN
D
IS OWl AND HITS
CAR
KILLING
BOTH OCCUPANTS? TCA says two.
Here 0 f i l e d p r e t r i a l
habeas
corpus appl
i c a t i o n
seek ing to bar
second involunta ry manslaughter
prosecut ion
on
t heory
t h a t
t r i a l
would
expose
him to
double
j eopardy .
St i p u l a t e d
w r i t
ev idence
showed t ha t :
While
D was dr iv ing
while
in tox ica ted . he s t ruck an
automobi le
in
which two women were r i d in g ; both women died a s a
r e s u l t :
D was
i nd ic t ed
s ep a r a t e ly
fo r Involunta ry
manslaughter
for each dea th: D was
subsequent ly
convic ted in
dea th
o f one
woman
and punishment was asse ssed a t
2
years
confinement .
[PROCEDURAL NOTE: The
pre t r i a l
wri t o f habeas corpus i s an
appropr i a t e remedy to review
a double j eopardy
c la im. Under such
c i rcumstances
an i n t e r l o cu to r y
appeal
i s not
only a
proper
but a
prefer t ' ed
remedy . ]
Held: Nei ther Blockburger
[284 U.S. 684
(1980)]
nor McW I
I iams
[634 S.W.2d 815
(1982)]
app ly
prec i se ly
to
D's
case .
The
ra t iona le o f those ca ses app] l e s t o s i t u a t i o n s in which
t h e
cr imina l
conduct
v i o l a t e s 2 sepa ra t e d i s t i n c t s t a t u t o r y
provis ions ;
here D's
conduct
v i o l a t e s
one
d i s t i n c t
s t a tu to ry a c t
-
twice . The of fense
o f
invo lun ta ry
mans laugh te r i s
comple ted
with t he
death
o f a s in g l e Ind iv idua l ; i t
is
o f
no
consequence
whether
the
o ther
dea th in ques t ion occur red
p r i o r
t o , contempor
aneously
with ,
o r subsequent to
t he dea th fo r
which D was
first
t r i e d .
Paul HERNANDEZ, No. 10009-83 Opinion on
Appe l l an t ' s
PDR:
Capi ta l
Murder
Convic t ion Aff irmed Judge Tom
Davis
[Concurr ing Opinion
by Judge
Cl in ton ; Dissen t ing
and Concurr ing
Opinion by Judge Teague].
9/17/86
INEFFECTIVE ASSISTANCE OF
COUNSEL
STRICKLAND V._WASHINGTON
ADOPTED
AS A
MATTER
OF STATE
LAW;
NO
GREATER
PROTECTION OFFERED
BY TEXAS CONSTITUTION
THAN AS
A MATTER
OF
FEDERAL CONSTITUTIONAL
LAW:
The two-pronged t e s t o f Str ickland_vo_Washlngton [104
S.Ct .
2052
(1984)J is
adopted
in
fu l
I .
The
major i ty
holds t h a t t h e Texas
Cons t i t u t ion
o f fe r s
no grea te r r i gh t s
o r p r o t ec t i o n s
than the
Sixth
and Four teen th
Amendments
to the U.S. Cons t i tu t ion . The
f i r ' s t
prong
o f St r ick land
[ I . e . ,
the s tandard for
dete rmining
i ne f fec t iveness ] d i f f e r s
I
ittle o r
not
a t a l l
from p r e - S t r i ck l an q
opinions o f
the
Cour t . The second prong [i.e. t h e t e s t fo r
pre jud ice
a
reasonable probab i l i t y t h a t
t h e
r e s u l t
would
have
been
d i f f e r e n t ] d i f f e r s from the former Texas ru l e
[See,
Ex
p ~ t e Duffy, 607
S.W.2d
507 (1980) holding t ha t e f f e c t i ve
a s s i s t a n c e was
so
important a r i g h t
to
a p e t i t i o n e r condemned to
dea th t ha t i t s
i n f r ac t i o n could
never
be
t r e a t e d as
harmless
e r ro r ] .
Major i ty
concluded
from a
review
o f the
e n t i r e record ,
t ha t
t r i a l
counsel rendered sub-par a s s i s t a n c e but that .
in
t.he
par t Icu la r ins tances
where t h i s
occur red , i t was
not shown
t h a t
the
r e s u l t would have been d i f f e r e n t had t r i a l
co u n s e l ' s
as s i s t ance been
e f f e c t i ve .
(1clnbcr
198()
Sf 8
8/11/2019 1986 October Docket Call
25/48
CAUTIONARY
NOTE INTERPLAY OF
VOLUNTARY MANSLAUGHTER AND
CAPITAL
MURDER
In a
footnote r e l a t i ve
to a
Jury charge
i s sue
t,he major
i
ty made the
fo I low i ng obse rva t i on:
Moreover.
we
do
not be l ieve t h a t
' sudden pass ion '
a r i se s
from
an ' adequa te
cause ' under
V.T.C.A. , Penal Code. Sec. 19 .04 .
when a D is in the course o f committ ing one
o f
t he under ly ing of fenses
d e l i n ea t ed
in
V . T . C .
A..
Pena
I
Code,
Sec.
1 9 .
03
(a)
(2)
...
James Wallace
VICKNAIR,
No. 036-84 Opinion on S t a t e ' s
PDR:
Remanded
t o
Court
o f
Appeals Judge Tom Davis
[Dissent ing
Opinions by
Judges
Teague
and
Cl in ton] ,
9/17/86
SEARCH AND
SEIZ
