2001 Fall Defender

8/11/2019 2001 Fall Defender

http://slidepdf.com/reader/full/2001-fall-defender 1/24



The Great Southwest uilding

1314 Texas

Avenue,

Suite

708 •

Houston,

Texas

77002

713 228 8300

"Let Us

Help You Have

Pleasurable

Leasing

Experience"

for More Information:

Contact

Charlotte Totten at

713-228-8300

The Great

Southwest

Building

wants

to invite

you

to tour our

first class

office spaces.

Located within

walking

distance of the courts, convent ion center and

Enron Field, it

is

ideal for attorneys, mediators

and arbitrators. We

offer flexible

lease terms

from 3-5

years

with onsite management,

leasing, maintenance

and courtesy

personnel, along

with 24 hour

access

to

the

building.

Our

full

service

rates include

standard

electricity, utility, cleaning,

janitorial,

and directory

signs

Monthly

parking is also available as low as

95.00.

Our

building

is 21 stories high (147,000 sq. ft.)

with

many attractive featu res:

• First

floor-

I rma's Southwest

Grill

Restaurant & Fast Signs for your

advertisement

needs

•

On

site Deli and Barber Shop

•

Office

space available

from 500

-

5,000

sq. ft.

•

Newly

renovated common areas

Rental rates range from:

13.00

- 17.00 per sq. ft.

We are proud

of

our

great

rates and management "



HCCLA OFFICERS

2001 2002

PRESIDENT

Wayne Hill

PRESIDENT ELECT

W. Troy McKinney

VICE PRESIDENT

Cymhia

Henley

SECRETARY

Paul

SL John

TREASURER

Emily Munoz

PAST PRESIDENT

Richard Frallkoff

BOARD OF DIRECTORS

Mary Acosta

WinslOn

Cochran

Rick

DeTolO

Rosa A Eli.des

Robe , Fie/cman

Kevin Fine

Tucker Graves

Ron Hayes

David Jones

David Kiana

Jim leimer

Da.ina O 'Kane

Kyle Sampson

Gram

Scheiner

Norm

S i l \ ~ r m a n

Helen

Simotas

PAST

PRESIDENTS

1971-2000

C Anthony Frilioux

StUart Kinard

George Luquette

Marvin O.league

Dick DeGuerill

W.B. House, Jr.

David

R

Bires

Woody Densen

Will Gray

Edward A. Mallett

Carolyn Garcia

Jack B Zimmerman

Clyde

Williams

Robert Pc/too

Candelario

Elizondo

Allen

C

Isbell

David

Mitcham

Jim

E Lavine

Riel< Bras s

Mary

E

Conn

Kent A. Schaffer

Dan Cogdell

Jim Skelton

George J Pamham

Garland

D.

Mcinnis

Robert A.

Moen

lloyd

W

Oliver

Danny

Easterling

Contents

From the President

. . . . . . . . . . . . . . . . 2

Horizontal Gaze Nystagmis

3

Intoxication Drugs ofAbuse Testing .

5

Blood

.

. 9

Apprendi

.

1

Succeding in Probation . .

.

.

. . .

. . . . . . . .

1

Banquet Photos

. 1

How to Seal Juvenile Records

.. . . . . . . 1

Winning ~ r r o r s . . . . . . . . . . . . . . . . . . . . . 2

Let's Hear From You

Call us with

your

suggestions on this publication

The

efender

Publisher

Editor Emeritus

Editorial Staff

Advertising

Distribution

Design and Layout

HCCLA

@

(713) 227-2404

Allen Isbell

W Troy McKinney,

Cynthia Henley Emily Munoz

Jay Skelton

Jeffrey Tesch @ Vyvid Productions

ph: (713) 526-1484 • fax: (713) 526-1844

Distribution:

750

copies per issue. • For article and other editorial contribution,

contact W Troy McKinney at (713) 951-9555

or

Cynthia Henley at (713) 228-850

To place an ad, call Jay Skelton at (713) 524-2404.

ADVERTISING RATES: (Rates are subject to change)

Full Page: 300.00

112 Page: 150.00

114 Page: 75.00

Business Card SiZe: 40.00

THE DEFENDER



FROM THE

PRESIDENT

Awards rewards and challenges

y

W YNE

i l l

The

purely fun part

of

serving as president

ofHCClA

ended as quickly

as ir

began on

June 14,

2001,

the evening of the annual

banquet. On that evening, numerous awards

were presented, recognizing the outstanding

achievements

of

HCCLA members

as

well

as

others who have made significanr

contribu

tions to the

crim

inal justice sysrem.

In addition to the fabulous menu, Tony's

Ballroom was energized by the pulsating

musical sounds provided by Rick

The

Don

Detoto.

David Mitcham, a

past HCClA

president, was presented wirh the Arrorney

of

the Year Award in

recognition

of

the

ourstanding results he has achieved for his

clients, and

as

a tribure to a career marked

by professionalism and commirment to

excetlence in rhe practice of criminal

law.

Richard Frankoff, immediare pasr president,

received recognition for his rireless work and

devotion to service in

furthering

rhe goals

of HCCLA. Troy

McKinney

presented him

wirh a

beauriful plaque, while

Roberr

Fickman presented a rather unorthodox gift.

Richard

presented president -elect Troy

McKinney wirh rhe President's Award for

Troy's

leadership

role

in

aurhoring

and

promoring

rhe HCClA

resolurion

condemning

certain

bond

revocarion

pracrices in some Harris

County

courts.

I

had

the honor

of

presenting

Judge

WiJliam M.

Wild BiJJ Hatten

wirh the

Judicial Longevity Award in recognition of

his decades of service to the judiciary and

citizens of Harris

County

. On rhe lighter

side, Judge Hatten

graciously

permirted

(encouraged) me to share several humorous

stories

abour

him

wirh everyone in

anendance.

It was a real pleasure to have

my

long

rime friend

share

in

the

evening's

fesriviries.

Vice President

Cynthia

Henley presented

rhe Harris

County Community

Supervision

and Corrections Department's assistant

direcror, Mike Enax,

with

HCClA's

Educarional Scholarship Award given

annually to a deserving probationer.

Our Key Nore Speaker, famed San

Antonio criminal

defense

lawyer Gerald

Goldsrein, enterrained rhe audience with his

usual freneric and rheatrical approach to

2 • THE DEFENDER

speech making. Gerry delivered a rhoughr

provoking evaluarion on how individual

liberties are shrinking

as a

result of

governmental

encroachmenr

on the

consritutional prorections once rhought to

be guaranteed to everyone.

Finally, the annual Torch

of liberty

Award

was presented to Texas State Senator Rodney

Ellis in appreciation

of

his

continuing

effort

to

make

positive

changes

in the criminal

justice system. Senator Ellis, the principal

archirect of Senate Bill 7,

The

Texas Fair

Defense Act," provided rhe audience with

his perspectives regarding the difficult path

this bill took before being signed into

law.

He described several cases that epitomized

the need

for reform

bur none

was

more

compelling than the srory

of

Anthony

Robinson, Senator Ellis' special guesr ar the

banquet. Mr. Robinson served

10

years in

prison for a crime he did nor commit and

for

which

he was ultimately exonerared.

Senator Ellis concluded his speech by issuing

a challenge to the defense

bar

ro become

acrively involved in the implementarion of

rhe Fair Defense Act.

luckily for me (and for HCCLA) pasr

president Jack

Zimmermann

approached me

ar the conclusion

of

rhe

banquet

and gave

me some

advice.

He

suggested rhar I call

upon former presidents as a resource during

my renure

as

president. Realizing thar our

organization needed to take a leadership role

and be proacrive in the implementation of

the Fair Defense Act in Harris

County,

I

announced rhe formation of the Fair Defense

Acr - Senate Bill 7

Comminee

consisring

of

Michael Charlton, David Jones, David

Kiatta,

Cynthia

Henley, Jim

leitner,

Ron

Hayes as rhe HBA Criminal

law

&

Procedure secrion liaison, and me. I named

Jack

Zimmermann

to chair rhis

comminee

.

(Thanks for that advice Jack ) As wirh all his

undertakings, Jack's service

as

chair of the

Fair

Defense

Act

Commirree

has

been

exemplary.

After numerous

meerings and an

exhausrive review of Texas Fair Defense Act,

the

comminee

produced the HCCLA Fair

Defense Acr Plan.

Jack

and I

met

informally

wirh a

committee of

districr

court

judges

ro

discuss

our

anticipated proposals. Thereafter,

HCClA's

officers and board of

directors

unanimously approved rhe plan. On

August

15 h, the wrinen plan was provided to both

the

County

Criminal

Courr

at

law

and the

District

Court Judges. Jack and I presented

the

HCClA

Plan

at the Harris County

Criminal

Court

at law Judges' meeting at

Del

lago

. We also provided

our

proposal to

an assembly

of

district

court

judges. H

CCLA

presented a wrinen

request

to the Harris

County Districr Court Judges asking for a

vote on the HCClA Plan and for a public

vore on any plan considered; unfortunately,

our

requesrs were declined and

our

Plan was

not

submirred

for a vore by the dis trict court

judges and the plan ultimately adopted by

the judges was adopred in a secret meering.

The

interim plan ultimarely approved by the

district

court

judges

adopted many

of

the

principles contained in the

HCCLA

Plan,

but

retained

all of

rhe

current

merhods

of

appointment, including: term assignments

for up to a year (contracr sysrems), limired

term assignments for a day or week (limired

conrracrs), individual case assignments,

and

a combination

merhod permirring

rhe use

of

any

of the rhree methods.

An ongoing dialogue wirh rhe respective

court groups has continued in an effort

to

ensure rhar

rhe defense

perspecrive

is

recognized and adopred in any plan finally

implemented

. In rhis regard,

Jim leirner,

David Kiana and I spent several hours wirh

rhe Districr

Court Fee

Commirree discussing

ways

ro

revamp rhe

entire

paymenr

procedure.

Addirional

meerings wirh

rhis

commirree are anticipared.

While rhe

Harris

County

Courts ar law

have not yer published a plan, I anticipare

rhar ir will call for a modified wheel sysrem

to provide for the

random

assignment of

qualified lawyers.

All

members

of rhe Fair

Defense Act

Commirree are to be

commended

for rheir

hard work and dedicarion to rhis project.

Wirhour their unselfish participation, rhe

HCClA Plan would nor have been

developed.

Turning

to orher marrers, I would like

to

see more

members

take advantage

of

rhe

excellenr

continuing

legal

educa,rion

programming provided by

HCClA.

Cynthia

Henley and Troy McKinney

organized the "After

Hours lE

Program"

which takes place on rhe rhird

Thursday

of

ee President's Message

o

page 14

..

all

2001





HORIZONTAL

G ZE CONTINUED)

...continued

rom

page 3

at the same two-second rate. In this phase,

each pass for each eye

must

take at

le

ast

eight seconds

and

the four passes together

must

take at

leas

t

32

second

s. When

the

stimulus is

at maximum

deviation, the

officer

mu

st observe distinct nystagmus

in

order

to score a clue for that eye. t is

insufficient to simply observe nystagmus

at

maximum

deviation since most peop le will

exhibit some visible nystagmus when the

eye is held at

maximum

deviation .

The

nystagmus

that must

be observed in this

phase must be distinct: that

is,

greater than

the natural nystagmus that will occur from

holding the eye at

maximum

deviation.

8. Passes -

On

set Angle

of

Nystagmus.

The

fourth

and

final set of four passes is

designed to

determine whether

the

onset of

nystagmus occurs prior

to

the eye's

moveme

nt

to a 45-degree deviation . In this

phase, the stimulus is moved very slowly

at

a rate

that

would take four seconds to

move the stimulus to the person's shoulder

or at a rate

of no

more than 10 degrees per

second. Once the officer thinks

that

he sees

nystagmus he is required to stop moving the

stimulus and hold it steady to confirm the

presence

of

nystagmus. The stimulus must

be

held sufficiently long to confirm the onset

of nystagmu s, sufficien rly long for the officer

t exa

mine

the a

lignment

b

etwee

n

the

stimulus a

nd

the

edge

of the shoulder

(approximately 45 degrees) so

that he ca

n

estimate the angle of onset , and sufficiently

long for the officer to

confirm

the presence

of some white remaining in the corner of

the eye. Ass uming an onset angle of 30

degrees

and

the stimulus being held for two

seconds

t

confirm th

e

continuation of

nystagmus, each of th e four passes in this

phase

mu

st take at least eight seconds (three

seconds out, two second hold, three seconds

back)

and

the four passes together

must

take

at least

32

seconds.

9.

Vertical

Nystagmus

. Although there

is

also a protocol for two passes for vertical

nystagmus

(VGN)

upon

completion of the

HGN, VGN was not examined

in th

e

NHTSA

validation research

of

the SFSTs

and it was not included in the SFST barrery

during

the original research.

Import

an tly, it

is

not

part of the HGN test a

nd

it is

not

admissible

under Emerson.

4 •

THE

DEFENDER

4 82 Litmus Test

When

the four phases

and 14

passes of

the HGN are

combined, administration of

the HGN from the time the stimulus first

begins moving must take NOT

LESS

THAN

82

seconds. Any HGN test that does

not

take

contain

at least

14

passes and take

at

least

82 seconds from

the time the

stimulus first begins moving

is not

admissible

because it has

not

complied with the third

prong of Emerson: that is,

the test was

not

administered in accordance with

NHTSA

protocol

and

requirements. As a practical

marrer, most

HGN

administrations

should

take

at

least

90

seconds. Since very few

people are 100 percent proficient

all

of the

time, since some

pauses

during

the

administration

are natural.

and

since

some

passes, such

as

the

onset

passes may actually

take longer than the theoretical minimum,

when

for instance, the onset

is at

40

degrees

instead of

30

degrees, any HGN

that

takes

less

than 90

seconds

is

suspect and

should

be

more

closely examined for compliance

with each individual phase of the test.

Other Common Mistakes

Other common

mistakes in the

administration

of

the HGN include moving

the

stimulus

too

quickly

-

or

less

commonly

toO slowly -

on individual

passes, holding

the

stimulus closer

than

12

inches

or

further away than 15 inches,

not

holding

the stimulus for

at

least four seconds

at ma ximum deviation,

and

curving

the

stimulus upward, downward, or around (also

called looping) as it is being moved through

the passes.

If

any of these mistakes are present

in the

administration of

the

HGN,

the test

and

its results

is

not admissible because the

officer

did

not comply with the third prong

of

Emerson that is, the test

was

not

administered in accordance with

NHTSA

protocol

and

requirements.

According to the NHTSA material, the

presence offour clues indicates a likely blood

alcohol level of at least .10. In Texas, however,

under Emerson it is improper for any witness

or

officer to testify to any correlation

or

relationship between

any number of

clues

and any quantifiable blood or breath alcohol

level.

Rather,

under Emerson all that is

admissible from the presence

of

at least four

clues is testimony

that

the administration of

the

HGN

indicated intoxication . In reality,

all

that the pre

se

nce of

gaze

nystagm

us

indicates is the presence of a central nervous

system

(CNS)

depressan t in the person's

system. While alcohol is a CNS dep ressa

nt

,

the

HGN

is

not

specific for alcohol. Indeed,

alcohol

doe

s not even cause nyst

agm

us.

Rather, its presence in a

person s system

simply exaggerates the

pr

ese

nc

e of the

nystagmus prese

nt

in all people.

More detailed

information

about th e

NHTSA

requirements

and

protocol for the

HGN as well as the

other

SFSTs can and

should

be obtained

from the

NHTSA

manuals

and

the studies

that have been

conducted regarding

them.

Every

practitioner handling

OWl

cases should have

and

learn the material

in

those manuals .

Manuals

There

are 3 different types

or

classes of

manuals:

(1) Student

Manuals for the

Student

Course; (2)

Instructor Manuals

for

the

Student

Course;

and

(3)

Instructor

and

Student

Manuals for the Instructor Training

Course

.

The

links and

NTIS Numbers

for

each follow. Everyone should have, at least,

the

1995 and

2000

Student

a

nd Instructor

Manuals

for the basic SFST course.

The

NHTSA

SFST manuals

ca n be

obtained

from :

US Dept. of Commerce

Technology

Administration

National

Technical

Information

Service

Springfield,

VA

22161

800-553-6847

for orders.

888-584-8332 customer

service.

http://www.ntis.gov.

The

current

manuals can also be obtained

from Texas

A M

since it

is the entity in

Texas

that

provides Texas law enforcement

officers with the material.

The manuals

are

available from:

Texas

A M University

Engineering Extension

Service

Law Enforcement Division

979-845-3211 (A M main number).

979-458-6850 (Engineering

Extension

Service).

800-423-8433

(Law

Enforcement

Division).

FaJl200I



INTOXICATION

DRUGS

OF BUSE

TESTING FORENSIC APPLICATION

Y NACHMAN BRAUTBAR, M.D.

Recreational use, and a buse , of

prescription

and

illicit drugs has grown in

the last 15 years, and

become

a point of

concern

to

both

forensic

and

non-forensic

physicians. Various regulatory agencies,

insurance

companies, and

idiocolegal

processes, such as workers compensation and

personal

injury

defense, have been utilizing

the defense of intoxication (drugs of abuse

and

alcohol

or

a

combination

of either) in

order

to

prove

or

disprove liability for injury.

This

paper

attempts

to

address testing for

these areas.

Biological samples for

use in drug testing

Commonly,

three

types

of

biological

samples have

been

utilized:

1.

Blood.

2.

Urine

.

3. Hair.

In tests

that

are utilized

to determine if

a

patient

has used drugs as opposed to an

attempt to determine if

the patient

is under

the influence

),

the

following can be

expected. Hair

will

retain the drugs

for

several months, most commonly three

months

after the use. Urine will retain

drugs

or their metabolites for anywhere from

several

hours to

several days,

or

in

some

rare

instances, weeks. Blood will retain the

drugs

or

their metabolites for several

hours and

in

some instances longer.

To determine whether

the person is

impaired as a result of a drug abuse, blood is

the

most accurate

biological tissue

to

be

tested because the levels in (he blood or the

presence

of

the drug in the bloodstream are

very

importanr

objective determinanrs in the

process

of

diagnosing or ruling

out the

impairment

or under

the

influence of

drugs or the intoxication defense .

Does positive blood testing,

urine testing r hair testing

indicate impairment?

Positive hair samples for drugs of abuse

does

not equate

with

impairment.

A positive

result

on

a hair test can

only determine that

Fall 2001

in

the

past a

patient

has used

drugs with

a

given limit.

The

presence

of

drugs of

abuse

in the

urine

absolutely cannot be

equated

with impairment, bur rather

only with

use

in the last

day or

several days, and in

some

extreme

cases

the previous week. The

presence of

most

drugs or their metabolites

in the blood will

not

prove impairment

because there is no scientific data to

extrapolate the exact level

of drugs

in

blood

that

will

impair

a specific user. That type of

extrapolation

has

been made only

for

alcohol,

which has a legal definition in

driving

statutes, as well

as

medical forensic

extrapolation formulas.

Commonly

a toxicologist and forensic

physician will be asked to

determine

whether

urine testing positive for drugs indicates

that

a person

was

under

the influence

or

intoxicated when

an

accident occurred

on

the

job

or

when

a car accident

occurred on

the road. The presence

of drugs

of abuse,

prescription medications, or their

metabolites in the

urine cannot

be

equated

with

impairment.

Unless clinical

data

from

the site

of injury or

prior to

the injury can

indicate

that

the patient was

behaving

as

an

impaired person, it will

be

very difficult

to

es tablish impairmenr.

The

presence of drugs

or

their

metabolites

in

the

blood

may

suppOrt

impairment

based on the blood

levels

and

the clinical behavior.

Drug recognition expert program

Due

to

the problem with identifying

impaired

workers

and

drivers in relation to

drug/blood

concentration,

the Los Angeles

Police Department has developed a program

called the Drug Recognition Expert Program

(ORE)

.

This program

started initially

with

the

training

of officers to recogniz.e

behavior

and

psychological

symptoms

associated

with

psychoactive drugs.

Over

time, the

program

has attracted the

attention

of other agencies.

Based

on the

evaluation, a ORE forms

an

opinion as to: (I)

whether the suspect is

impaired; (2) if impaired, whether the

impairment is

related to drugs;

and

(3)

if

related to drugs, which drug

category

or

combination

of categories is causing the

Impairment.

In a recent

study (Governor's Office o

Highway

Safety), the police

department

and

ORE

program

utilized

data

software

developed by Southern

California

Research

Tnstitute under

National Institute on

Drug

Abuse funding to record and analyze data.

A

patient

bank

of 390 men and

108

women

drivers was analyzed. The OREs correctly

identified at least

one

drug

category

in 91

of 415 specimens

in

which

the laboratory

confirmed one

or more drugs. No drugs were

found in

specimens from 26 individuals

whom the OREs judged not

impaired

by

drugs.

The

ORE's

decisions were

supported

for 83.5% of 484 specimens,

and

not

supported for 16.5% specimens.

Tn

14

cases, the

ORE

entirely

missed the

drugs found in urine and in 47

of

the

specimens for

which

th e laboratory

confirmed

multiple substances, the ORE's

decisions were combinations

of

hits, false

positives,

and false

negatives

. The

ORE

missed marijuana more

often rhan

othe

drug

categories,

but

it

cannot

be

determined

whether the misses were ORE error or a

consequence of

the drug's time course. Since

the

drug

s

principal

metabolite

can be

detected in

urine

for days

to

weeks,

a

specimen

may test positive even though i

was obtained at a time

when

active marijuana

was not ptesent and affecting the individual

A

positive

result for

marijuana

in

urine

which is not supported with evidence o

behavioral

impairment,

cannot

and

does

no

speak to the question of drug intoxication.

This scientific fact

is commonly

forgotten

or is unknown to

some

forensic physician

who

have the

professional and ethica

responsibility to evaluate

whether

the patien

was under the influence of illicit drugs. Fo

instance

,

r

had a

patient who

was involved

in a

truck

collision while

on

the job, and his

urine test positive for marijuana. The

forensic

examiner opined that

the

patien

was

under the

influence, despite

the

fac

that

the emergency room notes and the

paramedic notes clearlystated the patient wa

alert x

4

(times four).

Tn

the study of

OREs

quoted above

cocaine misses occurred

with

the second

ontinued on p ge 6

THE DEFENDER·

5



INTOXIC TION CONTINUED)

...

continuedfrom page

highesr frequency. Behavioral science

shows rhar

srimulanrs

are ofren difficulr ro

derecr, bur ir cannor be derermined

wirh

cerrainty

wherher

rhe misses are rru e

errors. Since rhe half-life

of

cocaine

is

approximarely

90

minures and

rhe

merabolire

(breakdown producrs of

cocaine) benzoylecgonine (BE)

is known

to have no psychoacrive effecr and can

usually be derecred for 24

or 48 hours,

urine

posirive for

BE does nor mean

rhar

rhe suspecr was

under

rhe influence

during rhe

evaluarion.

The dear message

from

these

studies is

1. The

presence

of

drugs of

abuse in rhe

urine

cannor

be used for rhe

inroxicarion

defense.

2. The presence

of

drugs

of

abuse in rhe

blood cannor

auromarically be exrrapolared

BAIL BONDS

24

HR

JAIL RELEASE

ail Bonding

Non Arrest

Bonding

Immigration

o n d i n ~

•

Traffic

Tickets

•

Open

a r r c U M

- ' ; ; ' ; ; ; , - c

• Misdem ors

• Bad

Ch

ks

• Felonies

ee We

Wl

H e l p i n g ~ ~ f W I l

•

Beverley Clark - Owner

NOTARY

SERVICES

AVAILABLE

PERSON L

1

-

IDEBITI INST LLMENTS

CHECKS WELCOMED

·

V IL BLE

HARRIS COUNTY BONDS

FT BEND

COUNTY

BONDS

713 784 5070

281 343 7775

713 784 5871

713 784 5070

Harris County

Lie 74424

6776 S. W Freeway, 160 • Houston, TX 77074 Ft. Bend

County

(Between S. W Hilton Hotel 6

Cowrado

Club) Lie 068

6 •

THE

DEFENDER

ro rhe

inroxicarion

defense.

Each case

requires

careful analysis

of

rhe

medical

records

and rhe

clinical reliabiliry of rhe

blood

levels.

3.

The

presence

of

drugs of

abuse

in

hair

has no

meaning

wharsoever

and

can nor

supporr rhe intoxicarion defense. The

only

exrrapolarion

ro be made

is

(har drugs were

used

somerime

in rhe pasr.

Medi«:ations And Substan«:es

Causing False ositives

There

are 161

prescriprion

and over-rhe

counrer

medicarions

rhar have

been srudied

and

resulred in

65

false posirive resulrs in

rhe

commonly adminisrered urine

resr for

drugs.

According

ro rhe Los Angeles

Times

reporr, Siegel, a

psychopharmacologisr

ar

UCLA, said, ''The widespread resring

and

reliance

of

rell-rale rraces

of

drugs in rhe

urine

is

simply

a

panic

reacrion

invoked

because

rhe

normal rechniques

for

conrrolling drug

use have

nor

worked

very

well. The nexr

epidemic

will be resring

abuse

.

The mosr commonly used urine resring

merhodology is AMIV Ir has

been shown

rhar over 250 over-rhe-counter medicarions

and prescriprion drugs can cause

fal se

posirive resr resulrs

using

rhis

merhodology.

The

following Table I lisrs rhe

drugs

rhar

have

been

reporred as causing false posi rive

resrs.

Table

Marijuana

Pain relievers

such as Advil, Nuprin ,

and

Morrin.

Mensrru

al

cramp

medicarions

like

Midol and

Trendar. All

drugs containing

Ibuprofen

. Passive marijuana

smoke.

Passive

marijuana

inhalarion

ar a rock concert

can

re

sulr in a posirive urine resr

despire

rhe facr

rhar rhe person has

nor

used

marijuana

.

Amphetamines

Drisran Nasal

Spray,

Neosynephren,

Vicks

Nasal Spray, Sudafed, and other

medicines conraining ephedrine or

pnenypropanolamine.

Opiates

Vicks

Formula

44M conraining

Dexrromerhorphan. Primarene-M

conraining perylamine. The pain

reliever

Demero] and prescriprion anti-depressanr

Elavil. Quinine

Warer

Fall 2001



INTOXICATION

CONTINUED)

Methadone

NyQuil Nigh [ime Cold Medicine

Cocaine

Antibiotics

such

as Ampicillin

and

Amoxicillin.

PCP

Diazepam, as well as some ingredients in

cough medicines. Dexuomethorphan.

Poppy seeds such as

on

a Burger King roll

or on

a bagel roll (according

to

the

Journal

of Clinical Chemis try, Volume 33,

No.6,

1987). Quantities of

poppy

seeds ingested

in thi s study, 25 and 40 gra ms,

may

be

expected

to

be contained in one

or

tWO

servings

of

poppy seed cake.

Therefore,

poppy

seeds represent a potentially se rious

source of falsely positive resu lts in resting

opiate

abuse. The paper in Clinical

Chemisuy also concludes:

Not only

is it

difficult ro distingui sh heroin or morphine

abuse from codeine, bur dierary

poppy

seeds

can give a s trong positive

re

sul ts for

urinary

opiares for several days du rarion thar

is

confirmed by GC/MS analysis.

The

I

sr of age

nts

rhat can cause false

posirive results in rhe urine has also been

described

for

endogenous excretion of

enz ymes in rhe urine. For instance, a study

from

Emory University

by

Dr.

James

Woodford, has

shown

that a percentage of

persons of African origin, Orientals , and

Pacific Islanders

may

be

re

sting positi ve for

marijuana

secondary

to a mechanism rhat

involves the

pigment

melanin , which

protects the skin from sun; it a

ppro

ximates

rhe molecular

structure

of the

T H C

merabolite

which

causes la

boratory

cross

reaction wirh mari juana.

What this means

is that

if you have used

any of these

over-the-counter

medications,

you may be accused (arrested ) based on a

false posirive urine test. If your expert does

not pi

ck

this

up you may

be in serious,

irrevers ible trouble .

Methodology Of Drug

Screening In

Urine

There are several

method

s to

detect

drugs

in the urine. The

mo

st frequent ones are

e nzyme Immunoassay EIA),

radioimmunoassay

(RIA), and florescence

polarization immunoassay (FPJA). There are

more sophisticated methodologies that are

Fall 2001

performed on extracts of urine

using

thin

layer

chromarography

TLC),

gas

chromarography GC),

high perfo

rmance

liquid

chromatography HPLC),

and

gas

chromatography/mass spectrometry GS/

MS). The

only

accepted procedures based

on the definition of the

National

Institute

of Drug Abuse NIDA)

and

the Department

of Defen se DOD) are immunoassays

followed

by

gas chromatography/mass

spectrometry

confirmation.

The

confirmation

utilizing gas chromatography/

mass spectromerry is required since the

methodology of immunoassay can give false

positive resu lts due to cross re activity.

This

is due to the

fact

that

this methodology

cannot specifically identify the drug, but

rather the

antibodies

recognize substances

that may have the same suucture chemically,

immunologically,

or

enzymologica ll

y

other

than

the drug of interest.

Immunoassays

for

amphetamines will show reactivity

with drugs structurall y related to

amphetamines, such as over

t

he-co

u n

ter sym

pa to med icoam ines,

phenylpropanolamine and eph edrine, over

the-counter

legal medications used for nasal

congestion

and cold

a

nd

appetite

suppressant.

Confirmation

therefore is a

must utilizing

gas

chromatography/mass

specrrometry.

The use

of

gas

chro ma

tograp

hy/

mass

s pecrrometry

provides an ex tr e mely high index of

reliability when

properly

performed and

applied.

Gas chromatography/mass s

pectromeuy

is a

superb methodology

if

done

correctly.

For instance,

if

the equipment has not been

cleaned

prop

erly, the runs from the previous

testing will

contaminate

the sample,

and

give

erroneous, inaccurate, and incorrect results .

Th erefore, ir is mandatory to look into the

methodology that was

used

for

specific

res ults on

gas

chromatography/mass

spectrometry in given case. On ma ny

occasions a deposition of th e lab technician

will

reve

a l that the sa m ple was

conraminated.)

Whar this means to you

is that if

your

utine is

tested utilizing rhe immunological

method only,

without

confirmation with

GS/MS, there

is

a high

probability

that the

result ma y be a false positive and irrelevant

to your SituatIon.

Forensic Accuracy Of Gs Ms

Gas chromatography/mass spectrometry

is

exrremely and

highly accurate

if done

correctly. A laboratory

that perform

s the

te

s

must

be

NIDA

certified

or CAP

(College

o

American

Pathologists) certified. All of the

labs rhat perform the gas chromatography

ma ss specrromeuy on site can be

NIDA

certified. Labs that send samples to anothe

laboratory for gas chromatography/mas

s

pecrrometry confirmation

are ineligible fo

NIDA certification .

Therefore

one

must

b

very careful when looking at the test result

to see whether the laboratory is

NI

DNCAP

continued o page 8

REASONABLE

S

DOUBT

HCClA

is

now the proud

co-sponsor

of

REASONABLE

- DOUBT -

a local access channel show

which

airs live

each

Thursday

night

from 8:00 - 8:30 p.m.

The show

is

co-hosted with

Dan Gerson

and

Cynthia Henley

HCClA s

representative

and Vice President.

The show hosts

a

guest

each week

and

topics

related to the criminal

justice system are discussed.

Tune into

hannel 7

and

call in with

your

comments at

713-807-1794

THE

DEFENDER • 7



INTOXIC TION CONTINUED)

...continuedfrom page 7

certified. Furthermore,

some

labs

do

nor

properly and

rhoroughly

clean rhe GC/MS

equipment

.

Some

labs do nor even

conducr

GC/MS

conflrmarion;

ins read rhey use

cheap alrernarive merhods ro increase profirs

and reduce expenses .

Therefore

you

mu

sr be

in a posirion ro aggressively cross-examine

rhe laborarory direcror

and

rechnician .

Drug

f

buse nd Hair Testing

Hair

resring for drugs

of

abuse has become

exrremely

popular

among employers. There

have been several scientific forensic

doubrs

raised

abour

rhe use of rhis

merhodology

for

proof of

abuse. For example, rhe Sociery of

Forensic Toxicologisrs in

1990

srared:

The

usc

of

hair analysis for employees in pre

employment drug resring is premarure,

and

cannor be

supporred

by

rhe currenr

inform

arion

on

hair analysis for

drugs

of

abuse. A 1997 srudy by

rhe Narional

Insrirure

of Drug

Abuse

concluded and

indica red rhar significant erhnic bias

may

be

rhe resulr of resrs for cocaine. Analyrical

Toxicology, in irs

Marchi

April 1998 issue,

indicared rhar removal of melanin from hair

a merhodology

used ro remove rhe e

thnic

bias) does nor eliminare rh e hair color bias

when interprering

cocaine

concentrarions.

Co ngression al records from

May

14, 1999,

indicared

rhar

rhe Secrerary

of

rhe

Department

of

rhe

Army

raised questions

about the

Army's use

of

hair resting in a

specific case

and members

of Co ngress were

expressing

rheir

discomfort

wirh

the

procedure's reliabi liry. Indeed, Representative

Cynrhia McKinney, a

Democrar

from

Georgia, advised Defense Secrerary William

Cohen rhar she

is exploring a

possible

legislarive remedy ro

prohibir

human hair

re

sring for drugs in

the

milirary, given thar

hair resring has

been proven

by forensic

roxicologisrs

ro

be racially biased .

Indeed

, rhe paper

by

Kinrz , er.

al.,

published in rhe Journal of Forensic

Scie

n

riflc In

rernarional ,

January

19 9

7,

Volume 17, pages 84 ro 123

and

151 ro

156

,

indicared rhar false posirives are found even

ar low

concentrarions

. Tissue hair analysis

in good hands with

good laboratory

technology

may

give an idea about

habitual

use

of

some

of

rhe

drugs;

however, it is

preferable rhar rhese

should

be

combined

8 •

THE

DEFENDER

wirh urinalysis urilizing eirher screening or

berrer

confirmarion

merhodology.

Practical pplication

to

a Case nalysis

A case

scenario can help

to make the

above data understandable.

A 32-year-old

female

parient was rhe

driver of a vehicle who was involved in a car

collision and

suffered

inrernal bleeding

(ruprured spleen) and a fracrure of a bone

of

rhe lower extremiry. She had requesred

medical benefirs from her insurance carrier

for medical expenses

as

well

as

rime lost from

work and

had filed a lawsuir since rhese were

denied

. The physician

who examined

the

parient

on behalf

of

rhe insurance carrier,

and whose report was rhe basis for rhe denial,

nored in his reports rhar upon admission ro

the

emergency room on

the

date of

injury, a

urine screening rest for toxicology was

done,

and

was positive for

amphetamines.

The

physician who examined the patient on

behalf of the insurance

carrier failed to

note

the

time

of the testing, the

time

the

urine

was

obtained

from the parient,

and wherher

the patient was taking any medications that

contained ampheramines,

such as

ephedrins

or

pseudoephedrines. The medical records,

however,

contained

notes from the

house

doctor who

arrended

the patient

ar rhe

time

of her admission. The house doctor took a

detailed hisrory, which clearly stated

that

the

patient is an

allergic

individual and that she

had for the previous two weeks been

using

compounds containing borh ephedrine and

pseudoephedrine. The medical records

further

showed

that

ll examining

physicians

clearly stated

that

rhe

patient

was alert x 4

on admission

to the hospiral - despite her

pain

and despite

medications

received from

the paramedics and emergency room

physicians . There was

no

clinical evidence

of impairment, rhere was no hisrory

of

drug

abuse,

and

there was

no

evidence

of

drug

impairment.

The

problem with

rhis case is

that rhe urine screening

test

was a false

posirive because of

rhe patient's use

of

over

rhe-counter

ephedrine

and pseudoephedrine

containing medications to treat a cold and

nasal congestion.

Had

a follow-up been

done

on

that sample with

gas chromatographyl

mass

specrrometry showing

a specific rype

of

amphetamine,

the

story

might have

been

different if indeed rhe

patient

was a user

(which was not the case here) .

This case further illusrrates: (I) rhe need

for a very in-depth evaluation

of

rhe chart

and

notes , as far as

ro the patient

's

mental

capaciry before and afrer rhe collision ; (2) a

derailed

analysis

of past and present

prescription

and over-the-counter

medications;

and

(3) the need

ro

follow-up

on urine screening rest if it is positive fot

drugs

of

abuse in a case where suc h suspic ion

is indicared.

Gas

chromatography/mass

specrrometry

is

rhe ultim

a

te tool to

eventually follow-up

on

such a suspicion .

In summaty, while drug abuse and

intoxication is a problem , the diagnosis of

inroxicated

is

a scientific

one and

can

nor

be based

on

personal beliefs

or

feelings

of an

examiner.

Dr Brautbar is board-certified in internal

medicine, forensic medicine, and nephrology,

with a specialization in toxicology Dr Brautbar

has

provided

expert

medical

opinion and

scientific evidence in product liability, personal

injury, medical nursing home standards,

and

toxic tort

cases

throughout the United

States Dr

Brautbar is a Clinical Professor ofMedicine at

USC

School

o Medicine

, Department

of

Medicine,

and

is

Vice-Chairman

o

the

Department

of

Medicine at the Queen

of

Angels

Hollywood Presbyterian Medical Center He has

published

over 230 journal manuscripts,

abstracts, and book chapters in the fields of

internal medicine, toxico logy, and nephrology.

His resume includes past andpresent membership

in

25

National and International Scientific

Societies including the Collegium

Ramazzini

.

Dr. Brautbar has been on the faculty

o

the

National}udicial College,

and

lectured to Judges

on the issue ofScientific Evidence, and was a

peer reviewer for the Federal Judicial Center

(Reference Manual on Scientific Eviden

ce

,

Second Edition, 2000 . Dr Brautbar

has also

been a peer-reviewer for the ATSDR. Dr

Nachman Brautbar can be reached at:

Nachman

Braurbar,

M.D.

6200

Wilshire Blvd, Suire 1000,

Los Angeles, CA

90048

Telephone: (323)

634-6500

Facsimile: (323) 634-6501

E-Mail:

[email protected]

Websi re:

www.environmentaldiseases.com

Fall

2 1



PERCEPTION AND MISCONCEPTION

All blood

is not

created equal

BY W. TROY MCKINNEY

While knowledge

may be

power

and

ignorance may be bliss, ignorance

of

available

knowledge gives one's clients neither power

nor

bliss. In the context

of

criminal cases

where blood analysis forms an integral

part

of

the case,

whether of

the State's

proof or as

part

of

the defense, most defense arrorneys,

judges, and prosecutors have large doses of

ignorance and have seldom stopped by the

trough

of

available knowledge .

This

article,

the first in a series, will describe and

debunk

some of

the

mi sconceptions abou t

the

sanctity of blood test result

s.

Simply, all blood, blood

tem,

and results

are not created equa

l.

Initially,

one must

know

what

substance was tested.

The

test

could have been done on

whole blood,

serum, or plasma

and

depending

on what

was tested, the results could differ by

as

much

as

thirty percent.

In

simplest terms, whole blood

is

everything that is drawn from the person.

Plasma is whole blood less the solids in the

blood . Plasma is separated from whole blood

by centrifuging (spinning) the whole blood

sample.

As

the sample spins, the heavier

solids in the blood go to the

bottom

of

the

test tube; the liquid

remaining

on

top is

plasma. Serum is plasma less the coloring

agents. For purposes

of

this article and for

purpo

ses of

comparison

to whole blood,

there

is

little difference between plasma

and

serum.

Th

e

re is

, however, a significant difference

between plasma

or serum

a

nd

whole blood.

Depending

on the study

and source,

variations

ranging

from 9

percent

to

30

percent have been found and

documented:

that

is,

an

analytical result

on serum or

plasma will overstate the true whole

blood

alcohol concentra tion by between 9

and 30

percent. While many experrs will indica te

th

at they feel comfortable

with

a

more

narrow range

of

potential variance, say 15

to

20

percent, it

is

simply

not

possible to

know the precise relationship

on

any given

person at any given t ime since it varies

both

between people

and within

the same person

at different times.

The

importa

nt

difference between whole

blood, plasma, and s

erum,

for purposes

of

this article,

is

the result

of

alcohol's affinity

Fall 2001

for water.

Not only is

alcohol soluble in

water, it has an affinity for water. That is

alcohol is attracted to and thus more likely

to reside in water than in solids.

t

is

for this

reason th at if

one

administered the exact

same

quantity

of alcohol

to

a

man and

a

woman of

the same weight, the vast majority

of women

would have a higher blood alcohol

level since

women

have a lower percentage

of

body mass accounted for by water.

In

its

simplest terms, since a

woman

has

less

liquid

in

her body in which to distribute a given

quantity of alcohol, the relative

concentration in the liquid that is present is

going to be greater than in a man . Stated

differently, 10 grams

of

alcohol in 100 liters

of

water,

as

in a man,

is going to

be less

relatively concentrated (.10)

than

the same

ten grams

in 80

liters

of

water,

as

in a

woman

(.125).

When viewing alcohol's affinity for water

in the cont

ext

of

a

blood specimen,

it

is

useful to

think of

it in relative term

s.

F

example, assume

that

a person has .10 gram

of alcohol in 100 ml of whole blood. If th

whole blood

is

converted

to plasma

(th

solids are removed), the remaining quanti

of plasma may only be

60

ml. Because

alcohol's affinity for water, however, a great

portion

of the

.10

grams of

alcohol wi

remain in the plasma. Thus a plasma resul

on

a weight to volume basis, may be .0

grams in the

remaining

60 ml, or

whe

converted

to

a 100 ml equivalent, would b

.13 grams per 100 ml. Mathematically,

there are .08 grams in 60 ml, the equivale

quantity

in 100 ml

of

plasma

is .13

gram

Of

course , this .13 result

on

plasma wou

be

30

percent higher

than

the

known

valu

of .10

grams in the

whole

blood specimen

Even though the

quantity

of whole bloo

to plasma was decreased by

40

percent (fro

100 ml to 60 ml), the

quantity of

alcoh

continued on page

1

DAVID

W.

KIATTA

IS PLEASED TO ANNOUNCE

THE FORMATION OF

CARAWAY e

KIAlTA, L.L.P.

Bill Caraway was formerly with Baker Botts and Helm Pletcher Bowen &

Saunders, where he practiced personal injury trial law. In the last 4 years,

Bill

has

secured more than 11.4 Million Dollars

in

verdicts or settlements for his clients.

Caraway Kiatta,

L.L.P. will

practice

in

the areas

of

general civil

litigation (with

emphasis

on the representation of Plaintiffs in

personal

injury

cases,

including

medical malpractice,

wrongful

death,

catastrophic injuries,

and product

liability)

and

criminal defense.

We proudly

honor referral fees to

referring

lawyers in civil cases.

CARAWAY e KIAlTA, L.L.P.

ATTORNEYS AT LAW

6363 Woodway,

Suite

710

Houston,

Texas 77057

Office

713-785-8005

bcaraway@justice com

Facsimile

713-785-8535

dkiatta@justice com

THE DEFENDER •



MISCONCEPTION

CONTINUED)

continuedfrom page

remaining

in the plasma did

not

decrease by

the same

40

percent. Rather, for purposes

of

this example, the weight

of

alcohol

decrease from the whole blood to the plasma

was

only 20 percent

(from

.10

grams to .08

grams).

While

alcohol has an affinity for

water, some

of

the alcohol that was in the

original whole blood sample will remain in

the solids

that

are removed

when

separating

plasma from whole blood. If one were to

measure the weight to

volume

ratio

of

the

solids, based

on

the above

example, one

would get

.02

grams

of

alcohol in

40 ml of

sqlids, which when

converted

to a

100 ml

eqllivalent

would

be .05 grams

per 100

m .

The

blood

alcohol level in the solids

would

substantially understate the true blood

alcoholleve .

Typically, medical facilities and

other

non

forensic facilities will

conduct

blood alcohol

analysis

on serum or

plasma while forensic

facilities,

such

as police

laboratories

and

medical examiners,

will

conduct

blood

alcohol

analysis

on whole blood. Some

medical and non-forensic

facilities will

automatically convert

a plasma or serum

alcohol level and report it as a whole blood

equivalent.

In such

circumstances, it is

important

to

determine

the factor used in

such conversion

as

it may be higher

or

lower

than reality

or

what

is recognized as

an

acceptable relationship.

Additiona lly, medical facilities will typically

use tests, such as an enzymatic immunoassay

(EIA), that

have never been recognized as

forensically acceptable

by

the

scientific

community

for reliably

quantifying

specific

blood alcohol levels. Rather, in the medical

context, these tests ate typically intended as

little more than rough screening tests. By

comparison, most forensic

facilities will

typically use tests,

such

as GC-MS (gas

chromatograph

- mass spectroscopy),

that

SCHNEIDER McKINNEY

P.C.

STANLEY

G

SCHNEIDER

W TROY

McKINNEY

THOMAS D

MORAN

Are Pleased to Announce

KEVIN D FINE

Has Joined the Firm as an Associate

Kevin Fine, born in Midland, Texas, March 15, 1967; admitted to bar 1994;

also admitted to practice before the U.S. Court of Appeals, Fifth Circuit;

U.S. District Courts for the Northern, Southern and Eastern Districts

of

Texas.

Preparatory Eductaion, Southeastern Louisiana University B.A. 1990); Legal

Education,

Texas Tech

University

School of

Law O s

1994),

American

Jurisprudence

Award. Member:

National

Association

of

Criminal Defense

Lawyers; Texas Criminal Defense Lawyers Association

(Death

Penalty

Committee);

Harris County Criminal Lawyers

Association (Board of

Directors); State Bar of Texas (Criminal Law Section).

1 • THE DEFENDER

have

much wider

forensic acceptability as

reliable methods for quantifying specific

blood

alcohol levels.

Other

things to look for,

that

should

be

considered, and that may affect the

meaningfulness of an analytical result in each

case include the person's hematocrit level

and

whether

the person

was

given IV

fluids

(lactate ringers) prior to the taking

of

the

sample.

Hematocrit

is one of the levels commonly

measured as part

of

a routine CBC

(complete blood

count). It measures

the

quantity of

solids in a person's blood.

An

elevated hematocrit level would

indicate

a

greater

than

normal

amount of

solids, which

when

removed from the

whole

blood would

reduce

the remaining quantity of

plasma,

and will frequently result in a higher than

normal overstatement

of the

blood alcohol

level

relative

to the whole blood level.

Importantly, a normal

hematocrit

level does

not

indicate that a plasma analytical result

is

equivalent to a whole blood result by the

hematocrit relationship. Rather, an elevated

hematocrit level

indicates

a

greater

than

normal

overstatement.

A sample from a petson who has been given

lactate ringers (an

IV

fluid

containing sodium

lactate)

and

whose

blood

is

subsequently

analyzed by an enzymatic immunoassay (ElA)

(which is the kind

of

analysis commonly

performed in hospitals) may, because

of

the

presence

of the lactate,

result in an

erroneously high blood alcohol result.

This

result occurs because as the enzyme lactate

dehydrogenase converts

the

lactate to

pyruvate, there

is

a secondary reaction where

NAD (nicotinamide adenine dinucleotide)

converts

to

NADH (the

reduced

form of

NAD with the

addition

of high energy

hydrogen, biologically

known

as

Coenzyme

1). The rate of

production

of NADH from

NAD,

however,

is

also

the

process by

which

the

quantity

of alcohol

is

measured in an

ElA

analysis.

Thus,

the additional NADH

that

results from

the

lactate reaction

is not

the

result of the a lcohol - even though it will

be

reported as alcohol in the test result.

Future articles on

blood testing will

concern gas chromatography, a more detailed

examination

ofElA testing, and

other

factors

and considerations in blood sampling , testing,

and

analysis.

FalI 2001



PPRENDIIN

TEX S

Does it kill the Texas murder statutes?

Y

WINSTON E COCHRAN JR

In

the last issue, Mark Bennett discussed

the use

of

Apprendi

v

New jersey _

U.S.

_ , 120 S.Ct. 2348 , _ L.Ed.2d _ (2000),

in federal cases. While no Texas state appellate

courts have yet applied Apprendi the decision

also could be of great use in Texas courts on

at least three issues : (I) the mitigation issue

in TEX.

CODE

CRIM . PROC. art.

37 .07 1(2)(e)(1); (2) the sudden passion

issue in TEX. PENAl CODE § 19.02(d); and

(3 ) the safe release issue in TEX.

PENAl

CODE

§20.04.

These are issues

on

which

we all should be raising new challenges, based

on Apprendi at every opportuniry. More oars

in the water definitely will help.

A

What the Supreme

Court Did in

pprendi

In Apprendi the Supreme

Court

reviewed

a New Jersey state prosecution where a judge

had increased the maximum punishment for

possession

of

a fire

arm

under a

New

Jersey

statute which

allowed

an increased

punishment

if a defendant acted with a

purpose ro intimidat e an individual or group

of

individuals because

of

race , .. The Court

framed the question

as

follows:

Whether

the

Due Process Clause of the Fourteenth

Amendment require s that a

factual

determination authorizi ng an increase in

the

maximum prison sentence for an offense from

10 ro 20 years be made by a jury on the basis

of proof beyond a reasonable doubt. 120

S.Ct. at 235

Apprendi

drew upon an earlier decision in

jones

v

United States 526 U.S. 227, 119

S.Cr.

12 15 , 14 3 L.Ed.2d 311

(1999),

although jones was an exercise in federal

statutory interpretation. Due process became

part of the

backdrop

for decision in

jones

bec

ause

of

a

principle

of statutory

construction: Given competing staturory

interpretations, courts should prefer the

interpretation that

avoid

s constitutional

problems. Apprendi focused on a footnote in

jones stating that under the Due Process

Clause of the Fifth

Amendment

and the

notice

and

jury trial guarantees

of the

Sixth

Amendment, any fact

(other than prior

conviction)

that

increases the

maximum

penalty for a crime

must

be charged in the

indictment,

submitted to

a jury,

and

proven

Fall 2001

beyond a reasonable doubt. Apprendi 120

S.Cr. at 2355, citingjones 526 U.S. at 243,

n. 6,119

S.Ct. at 1215, n. 6 .

Whilejoneswas

a federal prosecution, and

therefore

was concerned

with Fifth

Amendment due process, Apprendi tOok the

next step of applying the rule from the jones

footnote to Fourteenth Amendment due

process, which applies in state prosecutions.

Apprendi stressed that it was dealing with

constitutional

protections of surpassing

importance .

120

S.Cr. at 2348.

After

a

lengthy histOrical discussion ,

Apprendi

stated:

Other than the fact of a prior conviction,

any fact that increases the penalty for a crim e

beyond the prescribed statutory maximum

must

be

submitted

to a jury,

and

proved

beyond

a reasonable doubt. With that

exception,

we

endorse the

statement of

the

rule set forth in the concurring opinions in

Uones]: [Ilt is unconstitutional for a

legislature to remove from

the

jury the

assessment offacts that increase the prescribed

range of penalties to which a criminal

defendant is exposed . t

is

equally clear that

such facts

must

be established beyond a

reasonable doubt. 526 U.S. at 252-253, 119

S.Cr. 1215 (opinion

of

Stevens, J .); see also

id at 253, 119 S.Ct. 1215 (opinion of Scalia,

J ).

120 S.Cr. at 2363. Thus Apprendi created

three requirements:

inclusion in an

indictment of

the

punishment-enhancing

factOr, submission of the factor

to

a jury, and

the allocation of

proof

beyond a reasonable

doubt to the prosecution . Arguably, the first

requirement was

not

necessary to the decision

in Apprendi

but

it

is

in

the

text of the

oplOlon.

Four dissenters fretted that Apprendi was

effectively overruling Walton v. Arizona 497

U.S.

639

, 110 S.Ct.

3047,111

L.Ed.2d

511

(I990), concerning factors used to support

the

death

penalty. See

Apprendi

120 S.Ct.

at 2387

-2388 (O'Connor,

J., dissenting) .

Justice

Thomas

' concurring opinion

responded that the continuing viability

of

Walton is a

question

for

another

day.

Apprendi 120 S.Ct at 2380 (Thomas,

].,

concurring) .That other day, when

the

thin

ice supporting

Walton

finally melts away, may

be a day

on

which the Texas capital murder

statute

is

before the Court. The dissenters in

Apprendi

also noted the tension

berween

Apprendi and Patterson v. New York 43

U.S. 197,97 S.Ct. 23 19, 53 L.Ed.2d 281

(1977). The

Apprendi

majority really onl

returned

to a

common-sense

reading

o

Mullaney

v

Wilbur 421 U.S. 684, 95 S.C

1881,

44 L.Ed

.

2d

508 (1975), whic

Patterson

had attempted to limit. In shor

Walton

and

Patterson

survive simply becaus

the

facts

of Apprendi

did not require eithe

of them to be overruled in Apprendi itself.

B

pplication

to th

Texas Mitigation Issue

The first place where Apprendi should b

applied in Texas law

is

TEX.

CODE

CRIM

PROC.

ar t

. 37 .071

(2)(e)(I). Under tha

statute, a

jury

is

asked

to

decide:

Whether,

taking into consideration all o

the

evidence, including the circumstances o

the offense, the defendant's character an

background , and the personal

mora

culpability of the defendant, there is

sufficient mitigating circum s tance o

circumstances

to warrant that

a

sent

ence

life imprisonment

rather

than a

deat

sentence be imposed .

f

ten

or

more

jurors answer in

th

affirmative, life imprisonment

is

imposed

TEX. CODE

CRIM

. PROC. ar

37 .071 (2)(f)(2). If the jurors stalemate an

cannot

agree, life imprisonment

is

impose

TE X . CODE CRIM. PROC. ar

37 .071 (2)(g). Only if

all

rwelve jurors answ

in the negative may

the

death penalty b

imposed. Article 37 .071 (2)(0(2). Thu

subsection (2)(e)(I) plainly fits the mold

an issue on which a factual determinatio

raises the

maximum

punishment

that

available. The factual issue

is

a comparativ

one,

but that does

not alter its factu

character.

The

Court

of

Criminal Appeals has he

that there

is

no burden of

proof

with respe

to the mitigation issue, at least on the

face

the statute.

Lawton

v

State

913 S.W.2d 54

557

(Tex.

Crim.

App. 1995). In

Lawton

th

Court

recognized

that the

burden

implicitly placed upon appellant

to

produ

and

persuade the jury

that

circumstances ex

that mitigate against the imposition of dea

in his case . Id.

The

Court went on to sta

that it was unaware

of

any constitution

requirement

that

the

burden

of pro

continued on page 2

THE

DEFENDER·

1



APPRENDI

CONTINUED)

... cont inued rom page

11

regarding mitigating evidence

be

placed on

either party. and ro the extent that the burden

is

on

appellant.

we

note that

it

is

not

unconstitutional

ro

so place the burden. The

authority cited for that conclusion was

Walton

v

Arizona If Apprendi trumps Walton. then

it follows that lAwton and its progeny should

fall as well.

The Courr of

Criminal Appeals has not

yet addressed the effect of

Apprendi on

the

mitigation issue. At least two Housron

lawyers are raising the issue on direct appeal

in capiral murder cases tried beforeApprendi

was decided. which is permissible with

respect ro charge error even without a trial

objecrion.Almanza

v

State.

686

S.

W2d

157

(T

e

x. Crim.

App. 1984). Other Housron

anorneys raised Apprendi prior

ro

erial in a

recent capital

murder

case. In the wake of

Apprendi. counsel in a death-penalty case

should not

only be

asking for a jury

instruction based

on

Apprendi. but should

also be asking ro question potenrial jurors

on

the marrer as well.

Apprendi

should be

considered pan of the law applicable ro the

case upon which the defense is enrirled ro

rely underTEX. CODE CRIM. PROC. an .

35.16(e)(2). This is especially handy now that

the

Coun of

Criminal Appeals has resrored

a meaningful harm review for the denial of

defense challenges for cause. See Johnson

v

State. 43 S.W 3d I . (Tex. Crim . App. 2001) .

What about post-conviction writ

applications in

capital

murder cases?

Apprendi

seems ro fit the new rule category

under Teague v lAne. 489 U.S. 288. 109

S.Cr. 1060. 103 L.Ed.2d 334 (1989).

but

it

is possible that it could fit within the Teague

exception

for bedrock procedural

principles. Teague

489

U.S. at 311.109

S.Ct

. at 1076.

The

limitation in

28

U.s.c.

§2254 poses a similar problem.

On

the other

hand. an issue which faces a new rule

problem on the federal side is also the kind

of

issue most likely ro be accepted in a second

application ro the

Courr

ofCriminal Appeals

under TEX.

CODE

CRIM. PROC. an.

11.071.

C

The Sitting Duc k

ection 19.02(d)

Apprendi

also alters the landscape for the

defense of plain vanilla murder.

After

12

•

THE DEFENDER

Apprendi.

a statute that explicirly imposes a

burden of proof on the defense as ro a factual

marrer that determines

the

maximum

punishmenr

available would

have ro be

unconstirutional. Texas has such a sutute in

TEX. PENAL CODE §19.02(d):

At the punishment stage of a trial. the

defendanr may raise the issue as ro whether

he caused the death under the immediate

influence

of

sudden passion arising from an

adequate cause. If the defendanr proves the

issue in t he affirmative by a preponderance

of he evidence. the offense is a felony of the

second degree.

The

way

Section

19.02(d) is worded.

it

appears ro refer ro a reduction of the

maximum

rather

than

an increase.

but that

semanric distinction will not save the starute.

Whether

the finding

of

some fact reduces

th

e maximum punishment from life ro

twenty years. or whether the failure ro find

that fact increases the maximum punishmenr

from twenty years to life. the difference in

terms of years is the same.

Which maximum

penalty applies ultimately depends on

whether

the answer is yes

or

no

to

a

specific

facrual

question. Thus. secrion

19.02(d)

is

unconstitutional in light of

Apprendi. for (WO reasons.

First. Apprendi requires a jury finding with

respect ro a fact that leads ro a higher

maximum. Yet . in Texas. the

sudden

passion

adequate cause factual issue probably will n ot

be submirred ro the jury. and hence the jury

will not consider it. unless a

de f

endanr makes

an

effon

ro raise the issue.

Th i

s violates the

jury

trial clause of the Sixth Amendmenr.

applicable through the

Fourteenth

Amendmenr.

Second. pprendi

requires that

the

prosecution

carry

the burden of

proof

beyond a reasonable

doubr. This

statute does

not permit a

jury

finding that will cap the

maximum at

twenty ye a rs unless

the

de fendanr proves the issue in the affirmative

by a

preponderance

of the evidence. The

statu te's allocation of the burden of proof is

a due process violation.

A

possible

third issue. as previously

suggested. is the indictmenr itself.

There

is

language in Apprendi. though not a holding.

that might

suppOrt an argumenr

that

a

murder indictm

ent now needs ro negate

either sudden passion or adequate cause. or

both. Since an indictmenr

is

still valid for

jurisdictional purposes even

if

it omits an

element.

the

main function

of a motion ro

quash would

be

notice.

In

most

murder

cases. formal notice

that

the State will seek

more than twenty years probably does not

tell counsel anyrhing new. A pretrial

motion

should be filed. but

it

should arrack

the

statute

under

Apprendi rather than merely

asking that the indictmenr include

negation

of sudden passion and adequate cause.

Several assaults

on

Section 19.02(d). using

Apprendi. have been made in Harris

County

courrs by various lawyers.

and

the starute has

been arracked in a Galvesron County murder

appeal, but no

judge

has yet relied on

pprendi

and

found

Section

19 .

02(d)

uncon

stitutional as wrirren. Nevenheless .

every arrorney

wi

th a mu rder case should be

filing an

Apprendi

motion.

Sooner

or later.

someone will have the

right

set

of

facts ro

make the rough decision palatable. and a

rising tide could lift all the boats .

D. Safe Release

Secrion

(d)

of TEX. PENAL CODE

20.04. the aggravated kidnapping statute.

provides:

At the punishment stage of a trial. the

defendanr may raise the issue as ro whether

he volunrarily released the victim in a

sa f

e

place. If the

defendanr

proves the issue in

the affirmative by a preponderance of rhe

evidence. the offense is a felony of the second

degree.

This

provision often

is

called the safe

release issue for short. as in Buchanan

v

State. 91 1 S.W.2d 1 1 (Tex. Crim.

App.

1995).

In Buchanan and in Williams

v

State. 851

S.W

.2d 282 (Tex.

Crim.

App. 1993). the

Court

of

Criminal

Appeals

held

that

subsection (d) actually created a

shifting

burden. similar ro the situation with regard

ro defenses:

In Williams . we held that . the

accused has the threshold

burden

of

production

as

to whether he voluntarily

released the

compl

a

inanr

alive and in a safe

place. i.e .

if

evidence from

any

source does

raise the issue the burden of production

is

mer. Thereafter. the burden of persuasion

shifts to the State. which must convince the

continued on page 14

Fall 2001



g r a d Q l l i _ -

~ S c l a t e s

Professional Investigative Services Since 1989

' 'NOT GUILTY CASE DISMISSED

No

BILL

HUNG

JURY

These

are

the words you would like

to

hear on a criminal case ....

we

can

help

you get to

this

point.

• Investigators with over

7

years

of

law enforcement experience.

•

Vast experience

in

State

and Federal Jurisdictions.

• Numerous successes in

obtaining

dismissals, acquittals, no biDs , hung

juries

and

significant

reductions

in

sentencing.

• Appointed cases accepted, with efforts

geared

to effectively utilize the limited

budget

imposed by the Court.

•

Examination

of the evidence and

records compiled by the law enforcement

agency,

followed by our

investigation

that will

be

pursued to the case's most

logical conclu

sion.

SERVICES OFFERED

FINGERPRINT

EXPERTISE

SEARCH WARRANT AND AFFIDAVIT

ANALYSIS

WITNESS

LOCATES, BACKGROUND INVESTIGATIONS AND INTERVIEWS

BACKGROUND

AND VERIFY CREDENTIALS OF ExPERT WITNESSES AND

LAw

ENFORCEMENT

OFFICERS

SUBPOENA SERVICES

SCENE

INVESTIGATIONS,

INCLUDING

VIDEO, PHOTOGRAPHS,

DIAGRAMS AND

MEASUREMENTS.

PRE-SENTENCE INVESTIGATION ON

THE

DEFENDANT

VVe

a re

ded cat ed o

p ro d u c in g

' fac : t :uaI

accurate ,

unb ia sed

c I o c u l T M O i " a ~ i o n

~ d 1 l l 1 t : s

in

a

t im e l y m a n n e r .

T h e tr

~

y

AND confidential i ty

of our Nark

IS

t r i o r i t .

Please call either Gradoni

or

Kevin Templeton to discuss your

case.

14520 WUNDERUCH SUITE 120

HOUSTON, TX 77069

(281) 440-0800 Fax (281) 440-0208 OUI of

Town

(800) 803-9186

www.pnvate-eyeS

O(-lex.as.com

Stale License M74

Fall

2001

THE DEFENDER·



APPRENDI

CONTINUED)

... continued

tom

page 12

factfinder that the place where the accused

left the complainant was not safe; and the

factfinder must find the place unsafe to a

level

of

confidence beyond

a reaso

nable

doubt for the felony punishment level

to

be

for a first degree felon y."

Buchanan,

supra

at 13-14 . That's good,

but not good enough after

Apprendi.

The

State now has the burden of ptoofbeyond a

FT

ER

HO URS C

L

Social 5:50 p.m. - 6:00 p.m.

CLE

6:00

p.m. -

7:30

p.m.

At Paesano's Lounge

2 U Milam

Ho u

ston, "Iexas

Refr

eshments

-

Cash

Bar

12/20/0

1

ALR

Chris Samuelson

01/17/02

DiscOIICI

:Y

Cynthia Henley

02 21102 Blood

Troy

McKinney

03 21 02

Judges

Prosemtors:

Dealillg

with

tbe

Good,

tbc Kid, {Illd the Ug{y

HCCL

Panel

04

18 02

f J/VIl Hall

Mcetillg

lcadillg iSs/les ill

tin

courthouse t o d ~ l

HeCL

Panel

0. 116/02

Dire

Gary

Trid1ter

14·

THE

DEFENDER

reasonable

doubt

on

the "safe release" issue

even if the defendant produces no evidence

on the issue.

E.

Other

possibilities

There could be many additional uses of

Apprendi in other contexts. One interesting

qu e stio n is whether an increase in a

minimum punishment,

such as the "open

container enhancement

for

OWl.

is

Judicial Happenings

Congratulations

To

Judge Mark Atkinson, who has

been elected Chair

of

the

Judicial

Section of the State Bar of Texas.

Approximately 1,500 active and

retired judges comprise the State

Bar s Judicial Section. Atkinson

was

also

elected

to

head

the

Texas

Center for the Judiciary, the

organization in charge

of

the

state s judicial education. Judge

Atkinson

has

served

as

the judge

of

Harris County

Criminal

Court

at

Law

No. 13 since January 1

1987.

He

graduated

from

South

Texas College of

Law

and earned

his undergraduate degree

from

the University ofTexas at Austin.

governed by Apprendi. Logically, it should

be .

The only thing

Apprendi

explicitly

excluded from its rule was the fact of a

prior

conviction. Keep in

mind that

the Harris

County

charge bank

and

rhe various

manuals on jury charges were developed

before Apprendi. In all cases, couns el should

keep an eye our for possible charge

error

in

lighr of Apprendi.

Finally, yo u will

nore

when

you

read

Apprendi

thar

Justice Scalia and Justice

Thomas not

only were part of the majority,

but

a

lso

wrote strong concurring opinions.

It is a rare pleasure for defense counsel to be

able to say

that

Justice Scalia

and

Justice

Thomas both say rhe defense is right and

the prosecu tor is wrong.

Presidenes Message

...continuedftom page 2

eac h

month.

Participants receive 1. 5 hours

of free

lE

credit. In addition, Troy,

Cynthia

, and

T put together

the

Second

Annual

Coping with the

Pracrice of law

Seminar, which

is

scheduled for November

16

, . This symposium began last year in

response to the tragic loss of our friend and

colleague, Donald Davis. Once again, this

program will be

free

and offers atrendees

3.75

hours of lE credit.

Special rhanks to the officers and the board

ofdirectors for their suppOrt and th e valuable

contributions they mak e at board meN; ngs,

Some deserving special recognition for their

daily

effom on

behalf of HC

ClA

include

Emily

Munoz,

Paul Sf.

John,

Mark Benne[[,

and

Grant Scheiner. My hope

is

that the

work burden of rhis

organization,

currently

shouldered by a relatively small group of

members, will be more evenly shared by

other members coming forward and

volunteering

their time.

Th i

s

would

greatly

aid the association in its goal of increas

ing

our presence and imp acr in the Harris

Co unty C riminal Justice Sysrem . Co ntact

any memb er to become more

involved

,

HCClA should always strive to make a

po sitive difference

in

the co

urthouse

environment and in rhe community at large,

I look forward

to

seei ng everyone at the

an nual holiday party in December. If you

attended last year, you know rha( (his is a

big event that you should not miss

Fall

2001



SUCCEEDING ON PROB TION

(And proving it )

BY

CYNTHI

HENLEY

How many times have your clients sworn

to you

rhar

rhe

probation departmenr's records

are

wrong - rhar they did not fail

to

appear

for particular appoinrments? Have they

provided copies of receiprs showing rhar rhey

paid money on

rhe

day that they are alleged

to

have

failed to appear) (Maybe it was a day

the client

's

officer was out sick and rhe

substitute meant

to

get the file Out later

to

note

the

appearance and insert the paperwork

but it just never happened and the paperwork

became lost.)

Ever have

a client tell you rhey

had done more community service hours rhan

had been credited? Did

he

bring his mom

who drove him to the location and picked him

up every time and did she

tell

show you where

she had been docked pay from work

for

raking

off time to take J r. to do the community service

one a month?

We know that many errors occur in record

keeping.

You

can help your client avoid a

revocarion or adjudication with a few tips on

probation record keeping.

I

always advise

clients who

receive

probation

to immediarely obtain a spiral norebook,

which is dedicated strictly to probarion

maners , and rake rhe following sreps:

1.

Write the name, address, and telephone

number

of

your probation officer in the

norebook. If the officer changes, make a note

of it.

2. Make a copy of all documents wh ich relate

to probation, including the sheets of rerms and

conditions and any amendments; referral sheets

to community service, rrearment, etc.; money

orders given

to

the department for payments

of fees and restitution; receiprs from the

department for payments made; paycheck

stubs (especially if paying high restitution

amounts), erc. The originals should be stapled

into the notebook on the date

of

receipt. The

copies should be kept in a separate file in rhe

event the notebook is lost.

3.

Every

time you meer with anyone

for

any

reason related

to

your probarion, wrire down

who (name); what probarion meeting,

communiry service work done; trearment

provider, etc. ), when (dare and time), where

(address), why (if there is no documentarion ,

wrire down who told you to be ar rhis place) ,

and how, if rhere is a witness such

as

a spouse

or parent who went with you or provided

rransportarion .

Fall

2001

4. All the information thar is included in

the notebook must be stapled or written in on

the day that

it

occurs. The srapled items should

not be removed and re-srapled . The notebook

musr be a spiral , not a binder or folder,

to

enable

you to

demonstrate time sequence.

You

will

nor be able

to

add information in the

future.

f

you report to community service and

wtite in detailed information on day one, rhen

write relevant information about day two, and

continue this practice, when

an

issue arises in

month fifteen or year eighr

about

the

community service that was not credited for

day one, the notebook

will

serve

as

persuasive

evidence substantiating your assertion that

you participated in communit), service work

that

day.

The notebook may also

be

admissible

as a hearsay exception under Rule 803 (5), as a

recorded recollection, or under Rule 803 (6),

as

a record

of

regularly conducted activity.

Regardless of irs admissibility, it

will

certainly

refresh a client's memory abou t exactly what

s/he did.

Unrelated to

rhe

notebook, I

tell my

clients

that there is

no

sick me or sick child excuse.

If the probationer is

sick

but not in the hospital,

take a bag to barf in bur report

as

scheduled.

If the probationer's child is sick and requires

care, find someone ro watch the child but

report

as

scheduled. Technically, the probation

officers have no

authority

to permit re

sc

heduling and if they forget

to

record that they

gave permission for re-scheduling and an

issue

arises in the future, which causes them to

review the records, guess what gets reported to

rhe

court as a failure

to

appear.

JUSt

report:

and if they forget the barf bag, borrow the

officer's trash can.

Some clients tell me that probation officers

tell them that it is okay to drink a beer or two

bur no

gerring drunk or doing drugs. Wrong.

t is not okay to drink on the majority, if not

all,

of the probations. Is a beer worth going

to

prison?

Finally, for some clients the financial

inability to

pay

restirurion is an issue ftom rhe

beginning

of

the probarion. Probationers who

anticipate difficulty in paying their probation

obligations should keep a monthly balance

sheer recording income and expenditures.

Expenses such

as

dry cleaning, smaller car

maintenance or repairs, children's school

lunches, clothing, etc., are often forgorren

months in the furure, especially if they

are

paid

in cash. If the probationer is making less tha

full payments on restitution and/or fees, h

may

be required

to

explain why in the future

The bottom line is that probationers nee

to

be aware of the need

to keep

independen

records and not rely on the record keeping o

the probation department. Further, most o

the courts are at an all-time high for n

tolerance of violations and the client needs r

decide from day one where his/her prioririe

are. The key to success is

to

do what they

ar

told, when they

are

told, how they are told

and to record thar th ey

have

done

it.

A probation officer can be a probationer

best friend or worst enemy. If a probatione

makes the probation officer's job easy, th

probation officer

is

likely to try and mak e

li

easy

for

the probationer.

On

the other hand

if a probationer makes a probation officer's jo

difficulr, the probarion officer also has th

ability to make the probarioner's life hell. Th

choice of

how

a probationer is created by

h

probation officer is frequently made by

rh

choices the probationer makes about how

seriously

he

will rake his probation obi igation

and commirments.

M RKY NIS

Former

briefing

attorney with

the

14th Court of Appeals

Announces

the

opening

of his law practice

focusing on

criminal

appeals

1628 SuI

Ross

Houston,

Texas

77006

ph (713) 526-6282

fax: (281) 966-1626

e mail:

[email protected]

THE

DEFENDER • 1



HCCLAANNUAL MEETING

P

tchen,

JerI)

a

f the year.

·d Mitch

aOl

AAttorney 0

Da

v

HCCl

·d

Mit

chaOl

,

Da

v

. Vice president ike

fnax,

CynthIa Henley,

C nty

supervisor.

Harris

County ommu .

500 HCCLA scholarshIp.

6·

THE

DEFENDER

Wayne

Hill HCClA

President Sen t

Rod l ' a or

ney IS, Sen.

Ellis

Torch

of

Liberty A d

war

Richard Troy MCKinney.

Thanks to Richard for 1999-2000 Presidency.

Fall 2001



NNU L

M TING CONTINUED)

Fall 2001

Gerry Goldstein,

Randall

Ka ,m

en

er

Goldstein,

2000

Grant Schemer. G ry k

Keynote

Spea

er

dent-Elect

M Kinney pre

s

McKinney

W.

TroY F ~ a n k o f f W. ~ r y Member.

Richard

0 outstandlrlg

1999 200

THE EFEN ER· 1



HOW TO SEAL

JUVENILE RE ORDS

Y

EMILY

UNOl

Under certain c i r c u m ~ t a n c e s a juvenile

respondent whose case has been disposed of

is eligible to have his files

and

records sealed

pursuant to Tex. Fam. Code, Section 58.

00 3

.

The

applicable

statute

reads in

pertinent

part:

" a) Except as provided by Subsections (b)

and

(c),

on

the application of a person

who

has

been

found

t ·

have

engaged

in

deJinquen t

conduct or conduct

indicating a

need for supervision,

or

a person taken

into

custody to

determine whether

the person

engaged in

delinquent conduct or conduct

indicating a need for supervision, on the

juvenile court's own motion

or

on receipt of

a ce

rtification

from

the Department of

Public Safety

of

the State of Texas

that

the

records of a person are eligible for sealing

under

this section, the

court

shall order the

sealing of the records

in

the case

if

the court

finds

that

:

(1) two years have elapsed since final

discharge

of

the person or since the last

official action in the person's case

if

there

was no adjudication;

and

(2) since the time specified in Subdivision

(1), the person has

not

been convicted of a

felon y

or

a

misdemeanor

involving moral

turpitude or

found to have

engaged

in

delinquent conduct

or

conduct

indicating a

need for supervision

and

no proceeding

is

pending seeking conviction

or

adjudication.

(b) A COurt may

not

order the sealing of

the records of a person who has received a

determ

i

nate sen tenc

e

for engagi ng in

delinquent condu

ct

that

violated a penal law

listed in

Section 53

.

045 or engaging

in

habitual

felony

conduct

as

described

by

Section

51.131.

c) Subject to Subsection (b), a

court

may

order the

sealing of records

concerning

a

person

adjudi

cated

as

having engaged in

delinquent conduct that violated a penal law

of the grade of felony

only if:

(1) the person

is

21 years

of

age

or

older;

(2) the person was

not

transferred

by

a

juvenile

coun under

Section

54.02

to

a

criminal

court

for prosecution;

(3)

the

records have not been used

as

evidence

in

the punishment phase

of

a

criminal proceeding under

Se

ction 3 a),

Article

37

.

07, Code

of

Criminal

Procedure;

and

(4) the person has

not

been convicted of a

penal law of

the grade

of felony after

becoming

age 17.

d) The

court may grant the relief

authorized in Subsection

a)

at any time after

final discharge of the person

or

after the last

official

action

in the case

if

there was

no

adjudication.

If

the child

is

referred to the

juvenile

court

for

conduct constituting

any

offense

and

at the adjudication hearing the

child

is

found to be not guilty of each offense

alleged, the court shall immediately order the

sealing

of alJ

files

and

records relating to the

case.

Sealing the records

The

following a

re

my

suggestions

of

how

to seal a juvenile's records. I have successfully

used this procedure in

the

313th

and 314th

Juvenile

Courts

:

I . Filing: File your original application in

the

courtroom

with the

court

clerk.

There is

no filing fee.

Stamp as many

copies as there

are parties

and

a few extras "just in case. "

Obtain a

hearing

date

from the

court

coordinator or

the judge. The date

must

be

sufficiently in the future to permit y

ou

to

send out notice and obtain confirmation of

the parties' receipt

of

the notice.

Forensic Science ssociates

CriminaUCivil Con sultinG • Crime Scene Reconstruction • Firearmsffool Mark Exams

Complete Laboratory Analysis • Lab Accreditation

Consulting·

Forens

ic

Training Classes

FS

Edward

E

Hueske

541

Halifax Lane Coppell,

Texas

75019

Phone:

(972) 304-8668 • Fax: (972) 393-3612

www.forensic-xprt.com

18·

THE DEFENDER

2.

Notice: Send out the file-stamped

copies of y

our

application along with

the

order setting the hearing date to every agency

you have listed on your application .

These

must

be sent certified mail ,

return

receipt

requested, to

permit

you to prove service at

the hearing.

3. Proof

of

Service: Keep the

returned

"green cards" in a safe place in

your

file.

These cards will be

turned

into the

court

on

the

hearing

date

and

become

part

of the

court'S file.

Make

sure

and

keep a

copy

for

your file.

4 .

At the hearing you must:

a. Bring all the green cards and provide

them as proof of service.

b. Bring a proposed order sealing records

so that

the

judge may sign it.

c. Have the judge sign the order.

The "hearing"

is

very informal. It consists

of conferring with the prosecutor to make

sure

they

are in

agreement.

You

and the

prosecutor then approach the bench and

inform the

judge

that all

parries were

notified.

You

then

hand

the

judge your

proposed order for signature.

d.

Obtain enough

certified copies of the

order to send one to each agency you

made

a party to the application.

5.

After the

hearing: Send a certified

copy

of the

order

to each agency.

These must

also

be

sent certified mail,

return receipt

requested.

This

order directs those agencies

to send the juvenile's records directly to the

court.

6

In a couple

of

weeks: You should receive

letters from each involved agency indicating

their compliance with

the Court

's order. You

should

call

the court

to

ensure that the

agencies are complying. If n·

ot

, go down to

court

with the green cards to show that the

non-complying

agency

re

ceived notice and

that

they

are failing to comply.

7.

If

you have any

que

stions, please feel

free to call Emily Munoz at

713-227

-2244.

Good

luck

Below

s

a

sample pplication

for ealing Records

1

I Special thanks to Wendell

Odom

and

Molly

Odom

for provid ing

me

with a sample

Application for

Sealing

o ecords I use their

sample application as a templat e each time I

attempt

to seal a juvenile's files

and

records.

Fall

2001



JUVENILE RECORDS

(CONTINUED)

Ci\lISr. /\0.

_____

IN

THF.

MAITER or IN

Tin:

OISTRK

T

CO URT

HARRIS COUNTY. TlXAS

J ,,

E nrVF.N1I.£

JI 4

1H

J lIOiClA L OlSTRKT

~ ~ L l C T I O N rOR SlALIN li RECORDS

TO TI-tE I- ONORABI.E .JlIOCr. o r SAIO COURT:

t - : JI I

Vl:]IiI

ILE. l · I l l i l

) ~ r .

PUrsUJJ11 10 f

XilS ~ 3 n l l l

Code 9 58.UO.\ applies for en ordrr

: o < a l i n ~

aJllik

'. 4 1 ~ J r ~ L o f ( h in

t

h..-..: . d ~ ' . . . . . . : r i b l . J bdov, '

I.

Peillioner

cllrrenl l)

i " ' ;iT 1000

Anyslre":I.

H U l l

In

l - 1 i 1 r r l

( o u n l ~ . Tcxa.

On Fehruary '- ::'0:)0 :<;Ot . . < [liken inlO t u : - ; o d ~ and charged wilh

l o n of

marijllJntL nn

Alln l 5, ~ 1 l ( J ( ) . l h ("llUrl ( l P P ' 0 ~ l

,lfId

siiln\ d:.. O('fcrrt'd r o s c c u l i o n Ag.rcctnenl. P('lllioner

~ 1 J C l ' ,

. .

: ; f l l l l y n'm

rklrtl

luld"IT

nl

.

i I::..ch

l'Ondil;OIl

o . . I f ~ ; J ~ I t ' ~ ' ~ n l

while

u1llkr

sU

Xr.i

slon of her

propall{)n

LourJIO ,lIor rhl're ha.-.; he n IlI.l adjl ldietlion

hCOlfinf On

April 5. 2 0 ( J ) , l h i ~

11onorable

CO

liri

Hpprm

cd t h ~ Non-Sut

has rea.wn 10 tJclkw thai The fo lklwing oflicillis and 3J,cnc i

c',i

hold

Ii

Ie:"

:

md

rc,;,")rds

R

l

alin : 10

lhc abt}\c·d. ii,::ribotd

illoJcnl'

I. 1 ;uTI:o.( ·

ll lJn

t) I ~ . t r

' : 1 <\

lI

mllq - )O

fli :l:

.I.

..

b.

7.

JU\l'nllc D I \ ' I

1

20)

F r o n ~ 1 1 n

Huuston. )

l 'U , 77(}o2

Harm ( c lIn l ) l)i lml cr"r l

11cll

rr

.lnliln

j-klu ,slon.

1

ex-as

r

; ) f T ~

("

oullty

ramll

)

jtH'en iit

Oi

sl

ri..:

1

('o

url N

l

).

J

I

)

( I ~ r ~

l l i lhe

CU

lln

Han i .. JU"<:lIIk Pr"h,l lil'n [h:plIlmcnl

Uc(crrc.J Pro';Cculion

' J ' a ) l l

3540 \V e$ [)"lIas

Hnus[(In.lcx /l.s 7701 9

lIousl

on

P o ~ '

J A : p a n m ~ ' l l i

. . I ~

lllliJ 'lI\O Il. I X

77(10:

l liUTis

County SherHl s Ollicl'

I

"lUI Franklin

1 :1( lk p

;lTl

lnl n l

(,I' Puhli(; Sokr

y

P (J. 60:\ - I ( )

rA

I ISF:NO, _ _ _ _

IN TIlE \1A TER

or

IN THE DIHRICT COURT

HARRJS CO , l

i'lTY

.

TEXAS

J AI\,£ .n.f\

'ENll,.f

J14

TII

JUDI

C IAL ()1STAI<T

ORDER SEALING FILES AND RECORDS

On

11m

II'K: da y

CI

UTl e 10 Pc heard

PCl

ilioT)Cro.s I\ppt ica lioll for Scollng

F i l c

and Records

It appears 10 lh..: court lhal Ihi

:)

p f ' ) j ~ ) 1 1 should be gronl cd .

11 IS I"HE REFORE ORDERE D hO

Th

e fl i t' :)

il

nd

ft'(;urJs

In Ih

l'..:asc:: of JA

NE JlJVEN ILE. l'llnC1:mint (hI. m Jl l a fo r

\\h i th ~ h C " \>ta5 r laced

[lllh\ l:>t:f..:rrcrl

~ C U l l ( l n Prog,r<lln on Apn

l : ()Ou

. and

. hit-h .... a.,. n(ln-SUi ll"(l o n April -'. "20(1 1. sha ll be <;cakd

hll 'h o r u f l i ~ i a

li"'I",J

bd ow .. lIall :ol nJ I

t)

Ihi, nlur t ,I II lik:"i and ~ ' o , , ; o r

nrJcrcd '>( :lk (l

E,a..:h

il ;.(; tK:)'

or

otTlcial

hSh:d tll: lo :,

hil ll ddt'll:

frolll ll" n

.O.")m

a ll iude)(

r c f c l c

n c ~ : o .

1(1

Ilk'

file:.

anJ reco n:t ii ordereJ sea led

4.

L

id

, ~ l ' l l c ,

or

L l n i c i a l l l ~ l d

belo s hall l<ply

upon inquiry

lhal 110

rc.:ord : x i s

s.

Fall

2001

. j

lh

rcspl C

tl

o Petiliorli:· r.

Tll1: clelk

nfthc

court Shilll 'iicnd [l et:rtifi cd (If thi s order 10

lho:

following:

I. Harm Co unl y Oistricl t

\llorncy

os Olli ce

JU\l'nik D,

.

ision

2.

1"20) rrallkllfl

lJolI:<;lon.

TC'( I$;

770112

County 0ls1ri('1 CierI-.

l:WI franldil1

~ l u n . T

,,-as

170m

Han

is

C(llinly Famil\' Juvenile DISlricl Court No.

J

I";

Cle

rk

(If rllc Court

1115

C , \ I I ~ r e ~ s

HouSlOn.

n

ls

77002

4. Ila

ni,;

Co unr y Juvenile Prooo i on

Dl,p..

H1menr

Ddi.'rred p T ( ' l c " , : u l i Program

3540 \\ 'l':.1

HousrOll. T . . : ~ a 770 1Q

5. H O l l ~ l n n Po lice

Dcparrmcnl

J': OO

lra vis

Houslon. TX 77002

6. Clll tnl)' Shc

ril"f -s

OIl'll: :

1)0 1 Franklin

Houston. Tex as 77002

.. uslln, T(:I:\JS 78772

J.

Pur.;(IOMIIIO

TO:

li:lS F a m j J ~ Code

§

58.00J(J). P t : l l l a ) ~ ' r is r u l , k x l l u M\ <:

anJ

record s [;onc

c:

rninB lhe

: l ~

. ~ a l e d hecause Since Aflril 5.

l OCli P ~ · t i l i o n c r

h . l ~ not;

Ca l O

ttO

con\ 'lcled

of

a fel on), or :t misdeme:mor In\'ol" ing room lu rpilude;

(b)

B\Cn

found 10 havc

cnlYtScd

in delinquent COf'llJUC I

orcooduclindic31M

Q i MCd

fur

s.upt"n;islon: or

(e)

(h.-conH: Inc s u b , ( . ~ , of a pendmg proce.:.-ding ~ " ' t ' ' ' ' m g (, lIwiction or

adJud icalion.

WHEREPORE. Ptillion..::r pra} s the coun gr.ln

llhl

)

a.p

plio.::alloo and:

1. Sellnis m ~ l I c r fOJ

h

O::8nnl ..

2 Give rt ilS(Inable nolice of the hearin g 10 Petitioner <.mJ

10

each ~ n < . ' ~ and (lrliciaJ

named In

Pil.r.Ig,raph II

Ofl his nppiLcalion pursunnllo T':-';:I t Famj1y Cock .5 8.0CIJ.

J. Atkr the l r i n b on

thiS

mailer. order ':ll..: h u t T l ~ i a l amI a S I , . ' 1 ' k : ~ lnat P Q $ o ( ~ n.:,,:urd -

01 files C4l:lCC'tnlng Inc case 10:

(al

Smd

10 Ihis court 011

file

s and ret"oros in ttlt case:

(b) Dd ele .111 index rt:fl'n.:nc c::; 10 Lhc ~ : 1 l t . . " " fi lC$ and Iccords: anJ

(e) Rep ) o n in4uITY Ihm no ro.:cord e.(i SlS

. lln

res

p. I.

·l lu r elll lonCI

4. clerk of thl' t oun 10 send a ecndicd copy of the: otca lO

\

Md( 1

Ip

each

ai o.:l1cy

o( ntTleiul rn.ITII..,J in Ih

couler

. pursuanllo c l i o n 58.00. 01 t

ho:

l ' a m i l [, ude.

Rcspo;:clfllllr b m i l l c d .

SC

HNEIDER & Md.:l\ 'NE'l. P C

rN

TIlE: MATIER or IN

THE

DISTRJCT COURT

HARRJ \ ( ·OllNT\'. TEX.AS

.114TH

Jl

·

mC I

AL.

DISTRI

CT

A,'FIJ)AVIT OF CHILO

BEfOR.E ME. lhc- undersigneJ a U l h o r l 1 on J 3 ~ p . : r ~ o n a l l ~ appeared JANE

JU

VENILE,

who afler I x i n ~ duly .,.\.tto m slllIed:

I am

rI

le

cbild

,no

is ,he SU

tlil'Cl

of the' n b o w n L l m ~ r e d cause.

loo

n.' rl-ad lhe A p p l l ~ l l l i o n

for s.,·n l ing Rc..:ords

and

\>IcaT

1J\a'

:\UalJegwions

of

faci contained hertin Ink' Ill\d ..:one .: .

Affiant

SU

BSCRIBED /

IoND SWORN TO

B(;FO

RE Yt

E

Oll lnt _ d3

)

ot .

2001

7.

Te"as Departrm;111 of

Public

S < l f e ~

P.O. Oox '087

Austin.

~ X i l i 78772

NO lal ' PubhC'

S ' : l h ; ~ of T o.: ..;as

Signed Ihis ,h.;, _

a

)"

of______

2001.

JUDGE

PRE SI

DI

NG

CAUSE NO. _

_ _

IN

THE

M TIEROr IN THE DISTRICT CO l 'RT

HARRIS COUNTY, TEXAS

JANEJ, tvENllE

ORDERSETfING H["RlNG

DATE

IT IS

ORD EREU

that the

ht"

urin@on the Appli(,Rlion fOI S C 3 1 i n ~ Records is here-hy SoeT ror

_n m p.m, on tilt' _ day of _ _ . 200 1. in the courtroom

of

lhc 31-1

110

DI :o.I O..:1 ('our .

J u d ~ e

Pl\;S

idin( ,

THE

DEFENDER

•

19



WINNING

WARRIORS

Tribute to the Warrior o the Quarter Danny Easterling

BY CYNTHIA

IkNUY

Danny served

as

rhe

H ~ C L

President in

1999-2000 and worked diligently in matters

regarding the courthouse. He has continued

to

serve rhe organization and rhe defense bar

with his efforts on committees and projects

sponsored by HCCLA.

Danny has also continued his hard work

in rhe courtroom. He succeeded in·a-bench

trial in

the

315'b by ·

providing enough

SODDI

(some

other dude done it)

information rhat Judge Kent Ellis found

Danny's client not guilry of assault (bottle

rocket to the face of the complainant.)

Danny tried a

OWl

(combination drugs

and

alcohol)

and Carrying

A Licensed

Handgun While Intoxicated in

CCCL

# 9.

Client s

doctor

said

client

had natural

nystagmus

so

Danny had Officer e . D. Allen

(a

ORE)

give

him the

HGN in

court.

Luckily, he agreed

with

the

good

doc's

conclusion. The jury acquitted

on

borh cases

and Judge Wilkerson allowed the client to

leave rhe courthouse wirh his gun.

Recently in project court, Danny defended

a juvenile certified

as

an adult in a car jacking

where his client was the drivet while the car's

owner was raped in the back seat by the co

defendant. Danny got a not guilry on the

aggravated sexual assault

and

10 years

probation

on

the aggravated robbery.

In addition, Danny, with assistance from

Casey Kiernan, represented a man charged

wirh capital murder. The client and his cohort

had intended

to rob a drug dealer. However,

they went

to

rhe wrong apartment and ended

up killing an innocent person. Danny and

Casey were able to garher heartbreaking

evidence of rhe extreme physical and mental

abuse their client had suffered at rhe hands

of his parents. The jury rejected rhe State's

ry

for rhe dearh sentence and assessed a life

sentence.

Danny has also been successful in keeping

felony cases from going forward .

Client

charged in the

262

Dd

with possession of

cocaine in rhe glove box

of

a car rhe client

did nor own.

n

grand jury package, Danny

provided an affidavit from the client and

summary of rhe law on uaffirmative links."

Result? No bill And in rhe 313'" his client

was

charged with aggravated sexual assault

of a child. After going through 3

ADAs

20 •

THE

DEFENDER

Danny

was finally able

to

convince rhe

4'h to

dismiss

by pointing

out

the many

inconsistencies and lack

of

medical evidence.

HCCLA is

proud of

our

former president,

Danny

Easterling, and congratulates him

on

his recent successes.

other warriors have

lso ac hieved suc c ess on

behaH

o

their dients

Following

five

not guilry jury verdicts in a

row mentioned in a previous o c k ~ t

Call

David Milcham has continued his success

wirh

five

more -

OWl

in CCCL # 9, assault

in

CCCL #

8, deadly conduct

in CCCL #

15, and two co-defendants in burglary

of

a

coin operated machine in

CCCL

#

I. His

successes and hard work on behalfofcit.izens

accused prompted HCCLA to honor him

as

their Anorney of rhe

Year.

Congratulations

David, and thank you for your hard work

and dedication.

David Cunningham

won a

motion to

suppress evidence in the 174'h in front of

Judge Jon Hughes

in

a drug case.

David Kiana represented a man charged

with assault on

a public

servant and

arrempted

sexual assault, same

incident,

where client attacked a jail guard at 61

Reisner after

she

got off

work

.

Judge

instructed on lesser Class A assault because

guard

was off

work. Jury found guilry

of

assault

but

not guilry of anempted sexual

assault.

Randy McDonald and George Murphy

prevailed in obtaining a life sentence where

the State soughr dearh in the 337" District

Coun.

Michael

Turner

has been kicking

butt

in

Chambers

Counry. He

got

a

218

pound

marijuana case dismissed based

on

a bad

"traffic" stop, and in a second Chambers

Counry

case. an

18

pound marijuana charge

was dismissed

as

rhe jury

was

being seated.

(Cops held

dient

for 40 minutes

at

scene of

rhe traffic stop waiting for a drug dog.

The

State had already learned that Mike knew

what he was doing )

Daina O Kane

put our the fire on an arson

case in the 262

nd

with a "nor guilty" verdict.

Daina also had a c1iem charged with failure

to comply wirh

sex

offender registration laws.

Client was originally offered 25 years TOe.

(He was 15 years into 35-year sentences on

2 agg.

sex

assaults on children; paroled in

1999).

On

2

nd

trial date, client accepted

sweerheart

deal-

6 monrhs state jail (where

he had 9 monrhs credit.)

Mark

Bennen

gets to boast of one

of

rhe

few appellate wins occurring these days.

He

tried (and obviously lost) a discharge

of

a

firearm wirhin

ory

limirs case. He appealed

(pro bono ) and won. And this time rhe

COA

did not hide a defense win in an unpublished

opinion - read it at

Garza

v.

State. #

01-00-

922-CR. Congratulations

J.e. Castillo's client walked away wirh a

not guilry verdict in a jury trial in

CCCL #

14

where rhe

cI

ient

was

charged wirh evading

detention. J.e. raised

doubt

in rhe jurors'

minds about the reasonable suspicion

of

rhe

officer to chase the client

on

foot.

J J Paul rried a case ro Judge Janice

Law

in

which the State had charged a combi nation

OWLS and a

MRP

based on the DWLS.

Issue was "mistake oflaw," because the term

of rhe suspension had expired. Judge Law

found the client NG

(but

revoked

the

probation based

on

technicals.) He also got

a big

uNG

in

CCCL #

14

on

a

OWl

.17

In a

county court

in Ft.

Bend.

Troy

McKinney taught an officer the proper way

to administer field sobriery tests - judge

agreed the cop did not understand the "how

to's" before that date and kept

out

the video

and testimony

regarding

the

tests. Troy

convinced the jury

that the

prosecutor's

evidence was definitel.y lacking

and

they

returned a

not-guilty

verdict. (Boy, you

should have seen rhe video ). Troy and

Gary

Trichter also got a

OWl

not guilry in Waller

Counry

on

a case that Troy had previously

convinced rhe judge

to

gram rhe motion for

new rrial after a jury had convicted - with

another lawyer trying,rhe case.

Judge

Ned

Richardson had a reasonable

doubt

in

ruJing on a domestic violence assault

case Kent Schaffer and I tried.

Norm

Silverman returned

to

rhe 337"

to

try another large

dope

case. His client

was

arrested

with 18.5 kilos

and the State

generously offered 45 years pre-trial,

and life+

by the rime of trial.

While

the jury did not

whoUy buy the duress defense

Norm

asserted

because rhey convicted, rhey rhought enough

of it to give rhe client only a 20-year sentence

Norm also had a murder case in rhe I76'h in

which

his

client declined a 30-year offer. Case

Fall

2001



WINNIN W RRIORS CONTINUED)

became a crim. neg.

hom.

after a

motion

ro

quash was

granted and

lerter

ro grand jury

resulted in a no-bill.

Punishment

assessed at

20 months SJE

Dennis Smith tried a sexual assault of a

child case for three days before the

jury

hung

John

Perry

won

a case in the

Supreme

Cou

rr: United States v Bobby Joe Burton,

M

r. Burton

had been given a federal life

sentence following his conviction in a

drug

conspiracy. The Supremes vacated the

sentence and remanded because the

judge

and not the jury had decided rhe quantity

is

sue. (ala pprendi v

New

Jersey M r.

Burton

was

re-sentenced

ro the

staturory

maximum

of30

years.

John

has the case back

on

appeal for a

determination

of

whether the

quantity must

be decided by a

jury

when the

sentence does

not

exceed the starurory max.

Keep

us

posted

Scott Shearer gOt

a

motion

for new trial

granted

in

the

263'd on the basis of an

involuntary

plea,

overrurning

a 30-year

aggravated sentence. In addition, SCOtt

and

Bill Howel l gor a motion ro suppress granted

in a

child pornog(3phy

case in

Madison

County.

Jim

Sullivan was

court-appointed

on a

P

CS

case,

which

was dismissed juSt before

voir dire began

in

the

232nJ.

He

also

had

a

robbery by

threat

case reduced

ro

a Class A

theft

For

4/2/$1000

where the complainant

was an undercover narcotics officer.

The

offer

was

made

JUSt

as

voir dire was about to starr

in the 351".

Nancy

Botts won a suppression hearing

on

a "consent to search" case involving 6.5

Ibs of marijuana

in the 248'h.

Jerald Crow

tried 3 separate aggravated

35sault indictments in

one

trial in Coldspring,

·/cxas.

The numbers did not

add

up

and

the

jury

acquirred

on

all charges.

Brian

Wlce and Ned Barnett

succeeded

in a

motion for

new trial in

Galvesron

County on the issue of ineffective assistance

ofcounsel. Instead ofdoing 10 years as a first

offender, client is gerring a second chance.

Brian also chalked

up

another win , this

time

in Btazoria county. C lient, charged with

aggravated sexual assault and indecency, was

convicted of indecency. Btian files

and

wins

a morion for new rrial, and client is back ro

start,

but

this time

the

odds are berrer because

of the lesser charge

Fall

2001

Stanley

Schneider

demonstrated

that we

aren't losing '

em

all

on

appeal. The

court

ruled that the admission of extraneous

offenses after the State's failure to give notice,

along

with

the admission of back

door

hearsay warranted

reversal, albeit

in

an

unpublished

opinion.

This case was special

as

Stanley

was representing Brad Crow, son

of

the late John Crow,

without

compensation.

Thanks

for

your

dedication,

Stan.

Troy McIGnney has been kicking burr in

Fr. Bend. After

hearing

45 minutes of

evidence, a jury

rook

3.5 hours

to

flild his

client

not

guilty of

OWl

- after

they

sent

out

a

question

of

whether

Troy

had the

video

suppressed

l

Ft

Bend

got

the

message

and

dismissed another, easier defense case weeks

later.

Cynthia

Cline

used information she

discovered in her investigation for a juvenile

charged with sexual assault of a 5-year-old

to

convince the

State ro

back off

their

demand

for determinative sentencing,

and

ro

offer a

reduction

ro assault

with one

year

of probation.

Poppy

Northcutt

convinced Judge

Kroeker

to gtant

a motion

to

suppress on a

possession of 16 grams.

This

was after Poppy

had

convinced the

prosecuror

to

dismiss

the

companion

aggravated assault case

when

her

thorough search of

the

medical records

showed that the officer

reported

that his

injury

resulted in a substantially

different

manner than that

charged

Ricardo Rodriguez kept another client off

of

death row. Against Ricardo's advice, client

rejected offer of life

semence in

a drive-by

gang shooting that left 2 dead and

wounded

.

Although the juty

rejected the

no

guilty plea, Ricardo

convinced them that

th

c1iem

should not

be executed despite th

State's demand otherwise.

Great

job

Abby

Keenan and

Norm

Silverman

gOt

"not

guilty"

on

a

multi-kilo cocaine

case i

Judge

David Hittner's courr. Abby

and Norm

had to really

work

on this one to get "up-ro

speed" for their c1iem as they were hired onl

days before

the

trial began (and were denied

a request for

continuance) and the

trial bega

the same day as the WTC tragedy.

Michael Gillman victoriously defended hi

c1iem against a charge of aggravated assau

by shooting

the complainant,

an

acquaintance,

in the leg.

Belinda

Chagnard

earned

a

not

guilt

verdict after 6 days

of

trial in

the

185 h

on

an

aggravated sexual assault of a child case.

Finally, Bo

Hopmann got the

big

NG on

a DWl in which an officer "mistakenly" tol

the jury that he was HGN certified (B

helped

him

remember

that

he was not),

an

they brought

in "the crew" (you know -

officers ro try to stack

up

the

opinions an

make

a little

$ -

arresting, intoxilizer,

an

video). The foreperson was a me

mber

o

MADD, and

after

hearing what

she did, sh

was a little mad

Congratulations

ro all rhese

Winnin

Wauiors

If you have information about your wi

or a fellow warrio r

s

win

that

you would Ek

included

in rhe next edition of The Defende

please e-mail meatcynthiahenlq@yahoo.

co

m

or

call

me

at

713-228-8500. If

you wish r

nominate someone

for

recognition

in th

Tribute To The Warrior

Of

The Quarter

contact

me with details.

THE DEFENDER·

2



BURNS

BAIL

BO

FAMILY OWNED AND

OPER TED

S

We

advocate that a paid-in-full attorney is a client s UoI DI8111 01 8

Refer a DWI bond and receive a free DWI video

Open 24

Hours • Prompt • Courteous • Notary Available • Ex

Credit Cards Accepted • Terms Available • Free Parkx

John

Shaun

Carol

Shannon Shelby and Chris

713·224·0305

609 Houston

Avenue

• RoustOD Texas 7

THE

DEFENDER

1610 Richmond Ave

Houston

Texas

77006

ABIGA[L

L KEENAN

8 1 CONGRESS

STE 200

HOUSTON TEXAS 77002

Date post:	02-Jun-2018
Category:	Documents
Upload:	harris-county-criminal-lawyers-association
View:	216 times
Download:	0 times

2001 Fall Defender

Documents