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f2%h%?wa, President's Message: Gerry Morris, TCDLA's 27th President By E. G. "Gerry" Mowis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 President's Message: We Have Much to be Thankful For! By Dnvid L. Botsford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . In And Around Texas: Changing of the Guard ByJohnC.Bostorz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

r - J@&c~ Cross Examining the Technical Supervisor in t h e

Driving While Intoxicated Case By George Schartrrerl . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Role of the C o u r t Appointed Trial and Jury Consultant in Capital Cases: Insight from Ake, Re! & Moore BY Curtis E. Wills, PI1.D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Consitutional Implications of DWI By Cltristopl~er N. Hoover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Factual Sufficiency Review A f t e r Clewis By G a ~ y A. Udosher~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Ethical Considerations: What t o do W i t h I n c r i i n i ~ l a t i n g Evidence BY R O I I ~ I ~ L. Gornr~son . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 U p d a t e on Collateral Estoppel & A d m i n i s t r a t i v e License Suspension Hearings By Robe,? N. Urlnsherl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

J o t ~ m a l of the Tesns Criminal Defense Lawyers Association "Voice for the DeJwse (ISSN 0364.2232) is publislied nlonthly. except for JanuaryFebmary and JulylAugust, which

are bimonthly by the Texas Criminal Defense Lawyers Associalion (Inc.), 600 West 13111 Street, Austin, Texas 78701. Printed in the USA. Basic subscripiion rate: $36 per year when receiwd os a benefit of TCDLA meobership.

Subscriptions: $75 annenlly. Periodicals Poslagc Paid a1 Austin, Texas. POSThIASTER: Send address cllallge~ to Voice for rke Deferrse, 600 West 13111 Street, Austin. Texas 78701. The Voice for rhe De jo~se is published to educate,

irain and support attorneys in the practice of criininal defense law."

Pleasesend 1111 feature arlicles io Gary Udnheo, Adcles Editor, 2515 hlcKinney, Ste. 1500, LB21, Dallas, Texas 75201, 2141651-1 121. Send Practice Mnterials Colurn~ts to Mnrk Stevens, 310 S. St. Mary's, Sie. 1505, San Anlonio, T e x x 78205,2101226~1433. Please send a11 other maierials for publication lo William Allison or John Boston at the

TCDLA home office, 5121 478-2514, fax 51U469-9107. O 1996 Texas Criminal Defense Lawyers Associalion TCDLA \\'eb Site: I~ t tp : / /~r~ww.tcd la~co:~~ ... ......-.... . .- ..

want to thank the membership of TCDLA for affording

me the privilege of serving as your president for the

next twelve months. There is no finer organization of

lawyers anywhere. When I appear in court anywhere in this

state, I invariably run into one of our members doing his or

her undiluted best to represent the interest of an accused,

uphold the Constitution and laws of the State and Nation,

and generally trying to force the state or government to do

whatis right - all to the great frustration of those that would have it otherwise. I always feel proud when I get a

chance to watch you and I hope you'll be equally proud of

the job I do as your president.

There's a lot for me to do this year besides sit around and he proud. By the time you receive this issue of the Voice for the Defense, you will have received a letter from David Botsford announc$gF the resignation of ~ x e c u t i v e b r e c t o r John Boston, effective December 31. 1997.

Let tile first take a moment to thank John for his years of outstanding service to the organization. He took the job at a time when things were some- what in turmoil, with the intention of righting the ship and then moving on. He decided to stay al~nost eleven years and TCDLA is by far the better for it. During his tenure the size of the organization and the scope of its activities have grown. Finding someone to replace him will be no sll~;ill task.

John timed his resign;~tion to give us i ~ n opportunity to wind up ~ni~tters with which 11e is 11ersot1;dly i ~ ~ v o l \ d . com-

plete the grant application process for CDLP, and select a new Executive Director. We hope to accomplish the latter in time to allow for a transitiotl period in which John can bring his replacement up to speed.

With this change comes the opportunity to examine the ad~niti istrative structure of TCDLA and assess whether changes should be made to provide better service to our members and support of our activities. Because of the constant evolution of our legislative and CLE efforts and growth in menibersliip, our demands on the home office staff has changed over the years. The search committee that is charged with the job of finding a successor to John will first decide upon il new job description for the new Exccutivc Director.

I invite the input of the tmen~bel-ship into this process. Let mc he;^^. your

By E.G. "Gerry" Morris ideas concerning what services you would like to see the TCDLA office provide and what type of staff we need. At this point I a m leaning toward redrawing the job description of the Executive Director to function as a busi~~ess manager concentrating on the efficient administration of the organization. All organization policy decisions and pitblic relations functions would be delegated to com~nittees appointed by the president. The office would provide support for OUI- legislative effort, but policy decisions and lobbying would be done entirely by our members. The subject matter and speakers fol- CLE programs would be determined by a committee, with the office providing staff support for putting on the senli- 11:11-s.

and the membersliip. tl~rough its elected officers and directors, carrying out the functions which may best be done by lawyers sensitive to the issues that daily impact our practices. Our new Executive Director, therefore, will not necessarily be a lawyer. We will look for someone whose strengths lie in the area of the organization and administration of professiofil associations. I also expect to call on more members to get involved in membership recruitment, CLE planning, legislation, and other areas where we will no longer rely so heavily on our staff.

I expect during my tenure, to continue our traditional committees and membership services, such as Lawyer Assistance, Amicus, Signif icant Decisions, and, of course, the Voice for the Defense. With the increased fre- quency of executions (23 are scheduled by the end of June) the Death Penalty Strike Force committee will be active despite the new procedural barriers. Our legislative effort has evolved into a year round, every year program, s o there will be a need for a Legislative Committee even in this off year. I'll be calling on members to serve on these committees.

I am going to change the committee structure a bit this year. Rather than appoint the entire committee myself, I am going to appoint the chair of the major committees and authosize them to structure their committees as they chose to accomplislhh& pulposes. Thus far I have appointed the following committee chairs: Randy Wilson, Membership Committee; Cynthia Orr, Death Penalty Commit tee; Lydia Clay-Jackson, Women and Minorities Committee; Kent Schaffer, CLE and Nominating Committee; Betty Blackwell, Finance and Office Oversight Commit tee; Michael Heiskell, Long Range Planning and Special Projects Committee; and Bob Hinton, Lawyer Assis tance Committee. All chairs will be appointed by the time this issue of the Voice reaches you.; l y o u are interested in helping out i n these areas or if you need the assistance of one of the committees, co111Bct the conunittee chairs.

I'll slwi~ys hiwe an open en!- to your suggestions and cotnlnents. My phone

number and address is in the membership directory and my e-mail address is [email protected]. I look forward to hearing from you. Most of all I look forward to seeing you practice your craft. This organization will continue to provide you with assistance and make sure that you don't have to stand alone. *

Gerry Morris.

Born on October 18, 1952, in Gilmer, Texas. Moved a year later to a small community near Tyler. Graduated from Winona High School in 1970 in n class of 35. Attended Tyler Junior College and graduated cum laude from Stephen F. Austin State University in 1973. Graduated from the University of Texas School of Law in 1977, and after becoming licensed in November of 1977, iinmediately began the practice of criminal defense beginning with court appointments. Licensed in all the federal district courts in Texas and in the 5th and I l th Courts of Appeals as well as the United Sta tes Supreme Court . Active trial and appellate practice in federal and state coult. Best known tdal was the Branch Davidian Case. Recent ly reported appellate cases include United Sta tes I,. Kirk, 105 F.3d997 (5th Cis. 1997) ert Dane, cert. pending, and United Stores 11. Her~don, 7 F.3d 55 (5th Cir. 1993). Past chair of the Criminal Law and Procedure Section of the Travis County Bar, past member of the Board of Directors of the Criminal Justice Section of the State Bar of Texas, currently a lnelnber of the Board of Directors of the Austili Criminal Defense Lawyers Association, and a member of the National Associa t ion of Criminal Defense Lawye~s.

C. Anthony Friloux, Jr.' Houslon ( I 972-1973)

Judge Frank Malotley Auslin (1971-1972)

* Deteored

his has been a very interesting year and I want to

thank each of you for the support and encouragement

you have given me. Although we have had to address some

very difficult and disturbing issues and there are still signif-

icant hurdles to overcome, the leadership of TCDLA has

risen to the challenges and I believe the future is bright.

Indeed, we have much to be thankful for.

I also want to thank all of the officers and directors, and especially my able Executive Committee, for the input, wisdom and support they have given me. Keith Hampton is owed a special debt of gratitude for his tremendous effor ts a$,$h@legislature this year (which saved m e precious t ime to devote to other pressing needs).

I also want to acknowledge my sec- retary, Stephanie O'Connor, who has assisted me in ways that I cannot even begin to acknowledge. Wiihout her, this year would have been far more difficult. Trek Doyle and Walter Long, my associates, have done yeoman's work on TCDLA amicus matters and for that, I am in their debt.

By the time you read this colunin in VOICE, you will have already received my letter to the membership dated May 31, 1997. I will not digress to go over the matters contained in that letter other than to let you know that for at least the

last year that Li l l ian was a TCDLAICDLP employee, John had f B~ ~ ~ , , j d ~ ~ t ~ f ~ ~ d been reviewing and counseling her due i . to poor performance, which included a i formal warning letter in August 1996. f hi^ past year, we have had a crisis in Moreover, I commend John for h is i Texas: death is upon us as never before. efforts to correct the proble~iis as soon / 1 to share a personal experience as he learned about them. Let rile also 1 \"itti you, because it is very disturbing. say that despite the problems addressed 1 in that letter, John Boston has done a f oIl saturday, M~~ 3, 1997, I took on heck of great job for TCDLA througll i representation of Robert Madden, a the years. He is my friend and I know death row illlnatc sincc 1986. Robert he trusted and relied upon his staff for f bad been represented at trial, on appeal many, many years, just as the Past f and on state and federal habeas by the Presidents before me have relied upon 1 attorney. That attorney, whose the staff. I know that Gerry Morris has f is not important, wanted to save included a tribute to John in his COIL i ~ ~ b ~ ~ t ' s life from day one. He did his umn, so I will not go further into John's best for Robert, but a death warrant was many accomplishments other than to f issued on ~ p ~ i l 14, 1997. When I took say that they are very significant and he i the case on May 3, 1997, I was afraid has contributed to TCDLA as no other f that there would be little that we could Executive Director has before h i m A / do to help him because of the new suc- special thank you is also due to Sosie i cessive writ restrictiorls of Article Boston, who has supported our efforts 1 1.071,(5), Ann. C.C.P. to review massive documentation with i (passed i n 19951, and ,he ti- countless hours of Free work. i Terroris~n and Effective Death Penalty

Act of 1996 (i.e., 28 U.S.C. OR 2254, 2264). Nevertheless, we spent the next twenty five days fighting for Robert's life.

W e met with Robert on Tuesday, May 6, 1997. We immediately recognized that he was mentally ill. He was psychotic to say the least. H e build pyramids and rai: into walls, all in support of Ifis belief that his will was stronger than the poison that was des- tined to take his life. He was unable to seriously assist us and answer our ques- t ions. We examined Robert 's tr ial records and found that, in fact, the punishment stage of the trial reflected Robert's lifetime of mental illness. I retained Dr. Allen Childs to examine Robert and Dr. Childs determined that he was incompetent, thus leading us to a claim of execution incompetency under Ford v. Wainwright, 477 U.S. 399 (1986)(violation of 8th and 14th Amendments to execute someone who is incompetent).

W e also investigated the situation and ascertained that Robert's trial attorney, prior to Robert's trial, had represented the Sta te ' s main witness, Donald Jeffries, against Robert at trial in a prior divorce. We found this out from examining as many public records relating to Jeffries that we could find. We found Jeffries' divorce records. W e inter- viewed that Jeffries ' ex-wife and learned that from his ex-wife's perspec- t ive, Jeffries had a history of drug abuse, alcoh8 &use, and violelice. We confirmed that opinion of Jeffries' history from other witnesses who we dis- covered from the Jeffries' ex-wife. We confronted Robert's attorney and h e told us that he had not disclosed his prior representation of Jeffries to Robert or the court which appointed him. He gave us an affidavit which stated, in pertinent part, that:

"Donald Jeffries was an important witness in the prosecution of Robert Madden in Cause Nos. 7023-B and 7024-B. T h e s t a t e ' s case agains t Robert Madden consisted solely of cir- cumstantial evidence. As reflected by the opinion of the Court of Criminal Appeals, Jeffries provided critical e v - dcncc against Robert Madden. 'The Court of Criminal Appeals summarized

that evidence i n its opinion. In fact, in rejecting my challenge to the sufficiency of the evidence, the Court o f Criminal Appeals stated the following:

'The evidence, especially appellant's admission to Jeffries that he s to le Herbert's truck, clearly places appellant in the crime scene area at the approximate t ime of Megason 's murders. Perhaps most damaging is the evidence that appellant was in possession of the .22 caliber murder weapon, which he eventually sold to Jeffries who gave it to the police.'

After I was appointed to represent Robert Madden in the above mentioned cases I learned that Donald Jeffries was to be a witness against my client. When I learned of this fact, I should have informed the Judge and my client about my prior representation of him in the above mentioned divorce action in 1981, but I did not. I did not perceive this prior representation as a problem in my representation of Robert Madden in the capital murder case. In retrospect, I realize that I should have informed the Judge and my client of this prior representation. I should have invest igated Donald Jeffries because I now believe the informat ion that an invest igat ion would have uncovered would have enabled me to cross-examine him m o r e effect ively and improve my overall strategy. I now fear that my prior representation of Jeffries tainted my attitude towards him more than I realized at the time.

In regard to cross-examination, Mr. Osterman, a peace officer in New Mexico who was involved in the apprehension and arrest of Robert Madden, testified at the trial that Donald Jeffries had a good reputation for being law abiding and truthful to the best that he :auld ascertain. 10 S.F. 1908-1909 :copy attached). III part, because of my xior representation of Jeffries, I failed o investigate Jeffries and tbos failed to ,ring witnesses to impeach the tesrirno- ly of Mr. Osterman, which I now real- zc I could have done.

In regnrd to stsategy, I now realize hat Donald Jeffries' testimony was nherently suspicious, and that I c y l d

have developed evidence which not only would have undermined the credibility of Donald Jeffries, but would have allowed me to argue lo the jury that Mr. Jeff r ies might have been involved in the murders. Furthermore, I did not talk with his ex-wife, Betty Lou Jeffries, nor did I request my investigator to talk to her in preparation for trial."

On Thursday, May 22, 1997, we filed an Article 11.07 1 successor writ in the district court and the Court of Criminal Appeals. It contained the following two claims:

1. Applicant was denied his right to effective assistance of counsel, a s guaranteed by the S ix th and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 10 and 19 of the Texas Cor~stitution, by trial counsel's actual conflict of interest which existed due to trial counsel's previous representation of the State's key witness, Donald Jeffries, and which prevented trial couo- sel from investigating Jeffries, impeach- ing Jeffries' testimony, and adopting a more plausible defensive theory based upon Jeffries as an alternative suspect in the murders.

2. Applicant is incompetent to be executed: His execution would violate the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 13 and 19 of the Texas Constitution.

On May 23, 1997, the Texas Court of Criminal Appeals issued an unpub- l ished o rde r f ind ing tha t Rober t Madden had abused the writ in regard :o both claims by "fail[ingl to satisfy :he requirements o f ' Texas Code of 3 i m i n a l Procedure art icle 11.071, section 5(a). Judge Overstreei did not ~articipate and Judge Baird and Judge Womack dissented. Judge Baird stated hat he would grant the writ to deter- nine whether Article 11.071, R 5(a) 'bars consideration of a claim con- ending counsel who filed the initial ,wit appl ica t ion was ineffective." ludge Womack joined Judge Baird on hat ground. Judge Baird also main- ained tIlt11 Robert Madden's second :]aim could be "raised any time prior

to an ap~l icant ' s ilnminent execution" i not vet ruled on tlie two sets of docu- / internation;tl outrage over the pace of . . and , therefore , was "never barred under art. 11.07 1, section 5."

That same day, we filed our petition for executive clemency with the Board o f Pardons and Paroles and the Governor's office. W e sought a com- mutation to life because of our concern that neither claim would be cognizable on a successot&eti t ion due to the restrictions. on successor petitions in the s ta te and federal systems and thus, someone who was incon~petent to be executed and who had never had his right to conflict free representation at the trial and appellate stages litigated would be executed.

O n the next business day, Tuesday, May 27, 1997, we filed a petition for writ of certiorari and an original writ in the Supreme Court of the United States. W e also filed an application for autho- rization to file a federal writ (28 U.S.C. B 2254) and the proposed federal writ in the Fifth Circui t . This federal writ raised the same two claims that had been presented to and denied by the Court of Criminal Appeals.

Early on May 28, 1997, we presented (but did not f i le) a second original habeas to the Supreme Court in anticipation of an adverse ruling by the Fifth Circuit. We also presented (but did not file) a motion to reconsider in the Court of Criminal Appeals, in anticipation of denials by the Fifth Circuit and tlie Supreme Court.

**t F On Wednesday, May 28, 1997, at

approximate ly 4 :00 p.m., the Fifth Circuit denied relief. We notified the Supreme Court that they could now file the second original habeas we had presented to them earlier that same day and consider that second habeas in addition to the certiorari petition and original habeas previously filed.

At about tlie same time, ilie Board of Pardons and Paroles notified us that it had declined to recommend a coii~muta- lion of the death sentence (to life) to the Governor. Tliusrthe Governor only had the power to grant a thirty day reprieve.

As 6:00 p.111. approached - the hour of execution - tlie Suprcme Court liad

tncnts before it. The State agreed to postpone, te~nporarily, the execution. I spoke to Robert for the last time and told him that we did not know w11at the Supren~e Court would do and spoke of other matters. He was as psychotic ever during that conversation.

While the Supreme Court kept every- one in suspense, the Attorney General's Office agreed to postpone the executioli still further s o that the Cour t o f Criminal Appeals would have time to consider the motion to reconsider we had presented (but not yet filed) with the Court on May 28, 1997. This was done at the request of the Cour t of Criminal Appeals.

At approximately 6 : lO p.m., the Supreme Court denied both se ts of documents. I notified the Cour t of Criminal Appeals and asked that the motion to reconsider b e f i led . Accordingly, the Court of Criminal Appeals took over and began coosider- ing the motion for reconsideration. With Judges Baird , Wornack and Overstreet dissenting, the Court denied the motion to reconsider. At the Walls Unit in Huntsville,, Robert Madden, informed of the denials, voluntarily jumped 011 the gurney, made his last statement - proclaii~iing his innocence - and began watching fluids flow into his body. At 6:42 p.m., he was pronounced dead.

Robert thus became the sixteenth person to die in Texas this year. I am saddened because the Texas legislature and the Congress have construct- ed massive bars to successive writs, even when, as here, ne i ther c l a im could llave ever before bee11 presented to the Courts. Hopefully, the situation :an be rectified. Regardless, I believe that as history looks back at 1997 and 1998, i t will be viewed as one of the 3arkest in the history of criminal jus- :ice io Texas. Killing people is preda- :ory. whetlier i t is sanctioned by the State or not. Killing is never justified, :ven if i t is sanctioned by the State. Life without parole should be instigab :d so that injustices can be avoided. \,l;cybc. just inaybe, the public outcry n other p a r t s o f the country about fesas ' lust for blood, couplcd with

- executions in Texas, will someday change tlie situation. If you read the national and international publications that are cornmeliting on the current s ta te of events, it is difficult to be proud to be a Texan. Undoubtedly, allowing executious to be televised would impact upon the public perception of the event. Better still, executious should be performed in front of the cour t l~ouse in which the person was convicted and sentenced to death! The death penalty has never been doc- umented to have any deterrent effect, and thus, it is strictly for retribution that it can exist. Life witl~out parole is a better answer.

This sad story demonstrates why we have much to be thankful for. We are a l ive , we have our profession, we have our friends, our family and our dedication to preserving the constitutional rights we so cherish. We tilust never forget to fight the good fight. W e must never forget to stand up and be counted. At the annual nleeting to be held on June 7, 1997, Will Gray was inducted into the TCDLA Hall Of Fame. Will Gray has presented, with honor, distinction and great results, more death row inmates than anyone in the history of Texas. He is truly one of the great lawyers in Texas. And, moreover, Stanley Schneider was hon- ored by the Criminal Justice Section o f tlie S t a t e Bar o f T e x a s as t h e Out s t and ing Cr imina l Defense Lawyer of the Year fo r his stel lar efforts on behalf of Ricardo Aldape Guerra. Congratuations Stanley for a job well done!

As President Morris and the new board of Directors take over the helm of TCDLA, I wish them tlie very best. I encourage you to do everything you can to helr, them make TCDLA stroneer - and more influential in tlie courts and the legislature of Texas.

And finally, from the bottotn of my heart, I thank you for having given me tlie opportunity of a lifetime: to serve TCDLA as its President. It was my lionor iuid privilege. Thanks. *

8 V O I C E V O L . 2 6 N O 5 J U N E S 7

June 28 - July 5,1997 Advanced Cri~ni~ial Law Seminar

St. Kitts

Jack Tar Village

July 17-18,1997 CDLP Skills Course

Waco

August 21-22,1997 CDLP Skills Course

Houston

September 25-26,1997 Federal Criminal Law Short Course

Fort Worth

October (TBA) 1997 CDLP Forensics & Art. 11.071 Course

November 13-14,1997 Women &Tile Law Skills Course

Dallas

December 11-12,1997 CDLP Skills Course

Austin *

December 13,1997 TCDLA Board of Directors Meeting

Austin

y the time you read this E. G. "Gerry" Morris will have replaced David Botsford as president of TCDLA at the

annua1,meeting on Saturday, 7 June. I want to express special thanks to David Botsford, who continued during his presidency his long-standing dedication to the goals and purposes of TCDLA. (Also, at the TCDLA Board meeting, preceding the Annual Meeting, I submitted my resignation effective 31, December 1997. I will miss this organization, but after more than eleven years, it is time for a change. My thanks to all.)

TCDLA year, 1997-98, will be really big for President Gerry Morris, as he and Suzanne Spencer, Austin TCDLA member, have announced their wedding plans for early July. TCDLA is indeed fortunate to have Gerry Mollis, another outstanding lawyer fully dedicated to TCDLA and its goals, as president for the coming year. Best wishes and con- gratulations to Suzanne and Gerry.

MEMBERSHIP NOTE TCDLA's membership is currently

1,861 of those 50 are affiliates members. Although the affiliates do not con- stitute a large percentage of the total rnembershig, @ey are important to TCDLA's purposes and due to a recent IRS Revenue Procedure (No. 97-12) issued this year, there may be need lo clarify the role or our individual affiliate members. Here, I do not refer to Affiliate Associations as defined in Article IIIA of the TCDLA Bylaws (page 124 of the TCDLA Directory), but to Article 111, Sec. 6 . Affi l iate Membership, which provides, in pertinent part, that "membership shall be available to persons not otherwise eligible for regular membership who ... (con- tribute) regularly to the defense of criminal ca3eSand the goals of the Association ...." As a reminder the purposes ("goals") of the Association, as contained in its Articles o f Incol-poration and the Bylaws, are:

"The purpose of the Association shall be: To protect and insure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions i n criminal cases; to resist the constant efforts which are being made to airtail these rights; to encourage cooperation between lawyers engaged in the fu~ther- a w e of these objectives through educa- tional programs and other assistance; and through this cooperation, education, and assistance to promote justice and the common good." (Empl~asis supplied. It is interesting that these words were written in 1971 - the more things change, the more they stay the same.)

In a recent issue of the newsletter for not-for-profit service organizations, E.wripts, (Vo1.7, No. 4, Witlter 1997), published by Grant Thornton, LLP, Accountants and Management Consultants, it was pointed out that that some "associate members" (affiliates) join primarily to obtain membership benefits, and others join to gain access to the regular membership base (pre- sumably for financial gain). I believe that TCDLA affiliate members, join because they support the goals and purposes of TCDLA, howevet-, all classes of TCDLA members should be aware of the rationale of the IRS Revenue Procedure, which applies to Section 501(c)(6), IRC organizations (TCDLA's tax exempt status is under this section).

Excnlpts continues by stating that

af f i l ia te member dues of Section 501(c)(6) organizations will not be taxable, to the association, as unrelated business income (UBI is a term of art in not-for-profit accounting.), if the association created the category principally to further the organization's exempt purposes. If the principal purpose of the category is to generate UBI, the dues are taxable. The plain meaning of the language in the TCDLA Bylaws, which created Affiliate Membership, indicates that the intent was for affiliates to help further the TCDLA purposes.

The IRS has said that it will look to the purposes and activities of the organization, and not the intention or motive of the individual associate or affiliate for joining.

Not only does TCDLA need more regular members, we also need more affiliate members, which includes educators, law clerks, paralegals, legal secretaries, investigators, and anyone who believes i n advancing the pullloses of TCDLA.

Every member get a member. Semper fi. *

1 0 V O I C E . V O L . 2 6 N O . ! J U N E 9 7

l. INTRODUCTION

n the recent opinion of

Hartman v. State, - S.W.2d

---, No. 484-96 (Tex.Cr.App.

April 23, 1997) the Court of

Criminal Appeals held that the

admissibility criteria for scientif-

ic evidence set out in Daubert v. By George Scharmen Merrill Dow Pharmaceuticals,

509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed2d 469 (1993) and Kelly v. State, 824 S.W.2d

568 ( T e ~ c ~ A p p . 1992) apply to the introduction of all

scientific evidence. Prior to Hartman the trial corrrts have

applied those criteria only to inovel'i scientific evidence

such as DNA identification technique.

111 the DWI case where a breath test is involved, the state will attempt through the technical supervisor to extrapolate the results of the breath test backwards in time lo the point of driving. As the Department of Public Safetyis breath testing program is run currently, that extrapolation cannot be done in a scientific manner. The main reason for that defect in the program is that there is no "average" absorptio~~ rate of alcohol, and the technical supervisor has no specific knowledge of the driveris pl~ysiological co~lditior~ in any particular case. For infolnla- tion on this topic, the following article will provide some basic principles FI-om a legal poitit of view. However, the reader should take the time to read a scientific paper which is cited in this article: See, Dubowski, Kurt M., Ph.D., Journal of Studies on Alcohol. Supplement No. 10, July 1985, "Absorption, Distribution and Elimination of Alcohol: Highway Snfcly Aspects."

I!. THE BREATH TEST RESULTS

In passing Tex . Transp. Code ((724.01 1 and 724.012 the Legislature has deemed consent to have been granted by every motorist in the State of Texas to allow law enforcement officers to obtain a specimen of his breath.

(724.01 1 (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the personis breath or blood for analysis to determine the alcohol concentration or the presence in the personis body of a controlled substance, drug, dangerous drug, or other substance.

(a) One or more specimens of a personis breath o r blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person wllile intoxicated was operating a motor vehicle in a public place, or a watercraft.

(emphases supplied) Pursuant to Pen. Code (49.01 "intoxicated" means

1 2 V O I C E . V O L Z G N 0 . 5 J U N E 9 7

(A) not having the norn~al use of mental or physical fac- ulties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcol~ol concentration of 0.10 or more

The offense of driving while intoxicated is defined in Penal Code (39.04: (a) A'person cornnits an offense if the person is intoxicated while operating a motor vehicle in a public place. (emphasis supplied)

The essence of the offense of driving while intoxicated is that "while intoxicated" a person "exerted personal effort to cause tlie veliicle to function." Reddie v State, 736 SW2d 923, 927 (Tex.App. -Sari Antonio 1987 P.D.R. ref.); cited with approval in Denton v. State, 91 1 S.W.2d 388, 389 (Tex.Cr.App. 1995) Thus, the purpose for the admission of breath test results i11 any prosecution for DWI is for the State to show tlie physiological status of the individual accused at the earlier point in time when he was driving. Forte v State, 707 SW2d 89, 95 (Tex.Cr.App. 1986); Mullan v State, 668 SW2d 427, 428 (Tex.App. -Texark. 1984 no pet.); Weaver v State, 721 SW2d 495, 499 (Tex.App. -Houston [Ist Dist.] 1986 P.D.R. ref.); McCafferty v State, 748 SW2d 489, 491 (Tex.App. -Houston [Ist Dist.] 1988 no pet.)

Clearlv. there is no irrebuttable nresumntion in Texas that a , . breath test score of .lo% or higher taken at the station after arrest is proof that an individual was driving while intoxicated at an earlier point in time. Folte v State, supra at page 93. The State, when relying upon tliat definition of intoxication, must introduce "scientific evidence of absorption and metabolism rates" so as to relate the results of the breath test to the relevant point in time. Mullan v State, supra at page 428. The issue of whether that evidence is, in fact, "scientific" bears upon its admissibility. Emerson v State, 880 SW2d 759, 763-769 (Tex. Cr. App. 1994) In Daube~t v Merrell Dow ~ h a r m a c e u t h f , Inc., 509 U S . 579, 113 S.Ct. 2786, 125 L.Ed2d 469 (1993), the Supreme Court held:

Faced with a proffer of expelt scientific testimony, then, the trial judge must dete~mine at the outset, pursuant to Rule 104(a) [Fed. Rules of Evid.], whether the expert is proposing to testify to (I) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. (notes omitted)

Id., 113 S.Ct. at page 2796. .- 7

T e x a s has adopted Rule 705(b), Rules of Criminal Evidence, which serves the purpose of Federal Rule of Evidence l04(a) and which requires the trial court to hold a

State, - S.W.2d -, No. 484-96 (Tex.Cr.App. April 23, 1997) and Jonlan v. State, 928 S.W.2d 550 (Tex.Cr.App. 1996) Should the tsial court determine that the principles and methodology which underlie the scientific opinion or evidence are unreliable and not of a type reasonably relied upon by experts in the particular field in fom~ing opinions or infer- ences upon the subject, the opinion is inadmissible. See, and Daubert v Merrell Dow Pharmaceuticals, Inc., supra, 113 S.Ct. at page 2796; Harf~uan v. State, supra; Emerson v State, supra.

Ill. THE FACTS OF THE TYPICAL CASE

Essentially, the driver will be given one breath test after her arrest. One test does not provide sufficient information for an expert to forn~ulate a valid opinion concerning the physiological state (either of abso~ptio~i or elimination) of the individual tested because a chart of her absorption and elimination rate requires several tests taken several minutes apart. Texas Breath Alcohol Testing Program, Operator Manual, (Rev. 2/90) pp. 5-11 through 5-14, and figures 6 & 7. Furthermore, there are three possible relationships between alcohol concentration at the time of the test versus at the time of al-rest: alcohol concentration may be lower at the time of the test than the time of the arrest; alcohol concentration may be the same at the time of the test and the time of the arrest; and alcohol concentration may be higher at the time of the test than at

i the time of arrest

hearing for the purposes set out in the Danbert case. Goss v / It should be the driveris contention that the lechnical State, 826 SW2d 162, 168 (Tex.Cr.App. 1992); Fuller v State, j supervisor in her case is unable accumtely to determine her 829 SW2d 191, 214 (Tex.Cr.App. 1992); and see Hnrtman v. / alcohol concentration at an earlier point in time prior to the

test because he cannot know wl~etl~er she was in the absor tion or elimination phase of the process of metabolism 8

alcohol. Without more than one 1.eferent (the test), an expf cannot chart an absorption elitnillation curve on an XIY ax because a "curve" must have several points in order to I described on the W Y coordinate. A minimum of two poin would be necessary to show whether one is in the absorptic or elimination side of a curve.

Alcohol concentration predictions and "related back" esl mations based upon an individual's n~etabolism rate becon more difficult when other necessary variables are included

-c whatever calculat~ons an expert might make, e.g., the rate I drinking, .ihe weight and sex of the individual and tl amount and kind of food eaten at or near the time of drinl ing. For example, alcohol concentration rises more rapid on an empty stomach than on a full stomach. Thus, an ind vidual may reach an earlier peak of alcohol concentration I

his body and begin the eliminatio~~ of alcohol more quickly she 11% had nothing to eat during the periods of time immed ately before drinking and while drinking alcohol. Se, Dubowski, Kurt M., Ph.D., Journal of Studies on Alcoho Supplement No. 10, July 1985, "Absorption, Distribution an Elimination of Alcohol: Highway Safety Aspects," page 99.

There mill be no testimony that the Technical Supervisol- i the case ktlerv wl~en the peak alcohol concentwtion occurre in driver's body the evening of the breath test or concernin how much she had to drink that evening or when she drank He cannot base his opinion in the case upon her physiolog) her drinking habits or her personal response to elcohol inger tion. The Technical Supervisor cannot know which of 111

two characteristic breath alcohol curves to apply to the drive in evaluating the case. [See. Tex. Dept. I'ub. Safety, Brent

rlcohol Testing Progr:~m, Operator Manual, (Rev. 2/90) p. 5- , figure 21 Consequently, the expert opinion cannot concern the physi-

logical state of the driver at a point in rime ofle hour prior to le time of the test, and it is not worthy of being designated scientific" evidence. See, Emerson v State, supra; Daubert v 4elel~ell Dow Pharmaceuticals, Inc., supra, 113 S.Ct. at page 796. It is the statutory and administrative mission of the breath

:sting program in Texas to ... ensure a scientifically valid Breath Alcohol Testing Program throughout the state.

FtOURE 1: A O M R m O H OF AN E W A L W S E OF E M Y l ALCOHOL IN " W W Y C .PULL"BTWAW

Tex. Dept. Pub. Safety, Breath Alcohol Testing Program, perator Manual, p. 8-2 (emphasis supplied) Clearly, the echnical Supervisor's opinion regarding the facts under ese circumstances does not fit the term "scientific" nor can shed l ight on the allegation concerning the driver's

.eath/alcohol level when she was in actual physical control ' a motor vehicle. That kind of testimony is more properly troduced, if at all, through a qualified toxicologist or physi- an involved in multiple testing of the subject. Additionally, )where in the job description of the Technical Supervisor i thin the Breath Alcohol Tes t ing Regulations is the xhnical Supervisor given authority to present metabolism cts or extrapolation evidence, nor do his regulatory qualifi- ~tions require training for this type of evaluation and testi- ony. The Technical Supervisor simply makes a guess about lckward extrapolation. Metabolism facts and extrapolation evidence are scientific atters that are beyond the knowledge of the average layman. Fact, it map be "novel" scientific evidence for the state to.

3 V O I C E . V O L . 2 6 N O 5 J U N E 9 i

The problem with this type o f assessment is that the j have any utility, requires an upper end of the range bascd . Technical Supervisor, while formulating and applying this j

theory for later use in giving his opinion about the driver, must assume that she was intoxicnted while driving in order to form the upward boundary of the range. Therefore, without first assuming a probability of a higher breath alcohol concentration at the time of driving, i s . guilt, the rar~ge of alcohol concentration (intoxication) theory cannot be applied, and the probability of intoxication cannot be computed. Because the range of alcohol concentration (intoxication) theory requires the assumption s f prior probability of intoxication, its use is inconsistent with the presumption of innocence in a criminal case because that very range is used to establish, as evidence, the expert's opinion of probability of intoxication. Whether a prior probability of intoxication of 50% is automatically used or whether the jury is instructed to adopt its own prior probability percentage of guilt, when the probability of intoxication range is introdwed, the jury is required to make an assumption before it has heard all of the evidence: that there is a quantifi- able probability that the defendant committed the crime.

In fact, if the presumption of innocence were factored into the range of alcohol concentration (intoxication) theory, the range theory would be useless. When one assumes that the presumption of innocence standard would require the prior probability of guilt to be zero, i.e., that the driver did not have a higher breath alcohol concentration while she was driving than when she was tested, the probability of guilt would always be zero when the defendant has been tested within 30 minutes to an hour from the time of arrest - even with breath test scores as high as .19%. The range theory, in order to

upon a guilty assumption. In other words, the range theory can only work if the presumption of innocence disappears from considemtion.

Consequently, the conrt should not admit expert testimony stating a "range of alcohol concentration (intoxication.)" The court calrnot be certain, even with an appropriate instruction, that this testin~ony will not influence the jury's decision to convict. See, Leos v State, 883 SW2d 209,212 (Tex.Cr.App. 1994) Therefore, its admissiot~ which contravenes the constitutional principle of presumption of innocence cannot be harmless error. *

I Pen. Code (49.01, supra 2 Holding that a BAC analysis with an error range of .03

grams per 210 liters of blood is too unreliable to be considered "scientific." See, Emerson, supra, p. 769.

3 See, Negrini v State, 853 SW2d 128, 131 (Tex.App.- C o ~ p u s Christi 1993) and Dahl v State, 707 SW2d 694, 694 and n. 2 (Tex. App.-Austin 1986 P.D.R. ref.)

See, Dubowski, supra, at pages 104-105, figure 2B demon- strating that a person may raise as much as . lo% within one half hour.

George Scharnre17 is board certified in cr6iri!!al law by the Tesas Board of Legal Specialiiarion mrd br r r i ~ ~ r i ~ m l trial arh~ocacy by the Natio~ml Board of Trial Advocacj'. He is a foundir~g n~enzber of /Ire Na1iot7al College for DUI Deferlse. He 110s been a sole pr'acririoner iri Sarr Antonio for20 yearx

Texas Criminal Defense Lawyers Association Web Page http://www.tcdla.com

National Association of Criminal Defense Lawyers (NACDL) Attorney General of Texas, Office of the

Decisions of the United Sta tes Supreme Court - Legal Information Institute (Lli), Cornell FedWorld lnformation Network

Florida State University, School of Criminology Harris County Courts, Houston, T e x a s

Jamail Center for Legal Research - Tarlton Law Library Links in the Work of Justice

Links Toward Abolition Opinions of the Texas Court of Criminal Appeals

Southern Methodist University School of Law State District Courts in Harris County, Texas

Texas Legislature Online .. ? U S . Court of Appeals, Fifth Circuit - Jamail Center For Legal Research

U.S. House of Representatives lnternet Law Library U.S. House of Representatives lnternet Law Library: Texas

6 V O I C E . V O L . 2 6 N O 5 J U l l E 9 1

attempt to prove a range o t intoxication by mathematlcall). relating an individual's physiology back to a specific point i n time using only the results of one clre~i~ical breath test in orde~ to find the earlier alcohol percentage amounts in the tissues. The]-e are no cases specifically on this point, but some of the case law on DWl proof considers the task of relating the driver's drinking to her n~etabolism rate as a necessary component of the state's case. Compare Hartman v. State, supra and Forte v State, 707 SW2d 89, 95 (Tex.Cr.App. 1986); McCaffe~ty v Sffie, 748 SW2d 489, 491 (Tex.App.-Houston [lst Dist.1'1988 no. pet.); Mullan v State, 668 SW2d 427,428 (Tex.App.-Texark. 1984 no pet.); Weaver v State. 721 SW2d 495,499 (Tex.App.-Houston [Ist Dist.] 1986 P.D.R. ref) If the State seeks to prove its allegation of a breath alco- 1101 concentration of .10 or higher at the time the driver was in actual physical control of a motor vehicle using expert "scientific" testimony concerning his metabolism of alcohol, it is necessary for the State to provide an expert whose testimony is scientifically valid.

However, the State cannot prove that its "per se( intoxication allegation is true even by a preponderance of the evidence. Under the evidence typically presented it is equally plausible that the driver's alcohol level behind the wheel could have been higher or lower than the breath test taken at the station. Thus the State's proof of the test does not prepon- derate one way or the other, since a person may raise as much as . I 0 nrg. of alcohol per 210 1. in her breath within approximately an hour. See, Dubowski, supra, at pages 104-105, figure 2B & D. In fact the evidence in the typical case demonstrates, and it has been concluded scientifically, that:

... no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.

id., p. 106.

IV. DOES SO.CALLED "RANGE OF ALCOHOL CONCENTRATION" (INTOXICATION) THEORY VIOLATE RiPPRESUMPTION QF INNOCENCE?

Because he cannot extrapolate from the test to a specific breath alcohol concentration, the Technical Supervisor typically testifies to a range of alcohol concentmtion, i.e., intoxication, w11ich is extrapolated back from the test. The range of intoxication to which the technical supervisor testifies makes the 50-50 assumption that the driver was either lower or higher in her breath alcohol concentration at the time of the arrest than at the time of the test. This assumption is not predicated on the evidence in the case, but it is merely a t h e o ~ t i c a l means by which the expert arrives at his ability to create a range so that he can give an opinion about intoxicatio~~/goiIt.

The assumption that there is a substantial possibility that the driver was intoxicated by having a breath alcohol concentration at theti!uc of arrest which was greater than or equal to the test raises serious concerns about the presumption of inno- ceticc. It is antithetical to o w crimi~ial justice system to pre- sume anything but innocence at the outset of a trial. It is not until the defendant has been convicted that the presumption of innocence disappears. The presumption allocates the burdell of vroof in e criminal Ilia1 to the stale.

ing process. In t l~e administmtion of criminal justice, courts must carefully guard against dilution of tlre principle that guilt is to be establislred by probative evidence and beyond a reasonable doubt.'

f f [Tjo implement that presumption, 'courts must be alert to

I j factors th;lt may underlnine the fairness of tlre fact find- . .

: . .

In re Winship, 397 U S . 358,364 (1970)

Since the Technical supervisor cannot know whether the efendant is in the absorption or elimination phase of the rocess, any attempts at backward extrapolation must include 3th possibilities. Therefore, the Teclinical Supervisor will rpically extrapolate backwards in time using an "average" ~ t e of absolption itnd an "average" rate of elimination, giving le upper and lower boundaries of a range of alcohol concen- ation (intoxication) which theoretically applies to the indi- (dual tested. [See, figures A, B and C]

,

N March 1997

Coalition For Federal Sentencing Reform (A Projecl of the National Center on lnstilulions & Alternatives)

635 Slaters Ln., Ste. G-100, Alexandria, Virginia 22314

C o a l i t i o n Formed to Review Federal Sentencing P r a c t i c e s

On tlte loth anniversary of the adoption of the Federal Sentencing Guidelines, the National Center on l~tstitutions and Alternatives (NCIA) announced the creation of a new project, tlte Coalition for Federal Sentencing Reform, devoted to a review of federal sentencing practice. The Coalition will be comprised ofn~embers of the bar (judges, prosecutors, defense attorneys and others) as well as organizations, individuals and families x*o wish to refonn tlte system.

Law Professor Michael Tonry calls tlte Federal Guidelines "tlte most controversial and disliked sentencing reforrrt initiative in this centu- ry." The Coalition points-to surveys sltowing more than 8 of 10 federal trial judges believe tlte Guidelines unduly limit their discretion to impose fair sentences. Attorneys around tlic country have also expressed widespread discontent.

In announcing 111- project, NClA Director Herbert J. Hoelter said, "the objective is to determine if the Guidelines are meeting tlte original goals enumerated by Congress-just punishment, deterrence, incapacitation and rehabilitation." He expressed doubts whether this "ten-year experiment" has succeeded and he promised tltat tlte Coalition would seek to develop specific policy recommendations.

Criticisms of the Guidelines include charges that: . a system meant to impose uMfor~nity remains riddled witlt disparity; . the Guidelines shift excessive power from judges to prosecutors, who, by choosing the charges exert undue influence over the sentence; the Guidelines substitute one set of injustices for another, producing patently unfair results %

because they refuse to consider individual circumstances; . a system meant to simplify the sentencing process has instead created a more complex system that has clogged the courts witlt appeals.

Mr. Hoelter was especially concerned tltat people outside of the justice system uoderstand how important this problem is to them. "Jurisdictions tltat have seen budget cuts in schools, parks, hospitals and drug treatment centers have often seen doubling and tripling in prison budgets. We need to reexamine our priorities."

The Coalition will compile relevant data, solicit tlte views of a wide variety of individuals intpacted by the federal sentencing structure and suggest refonu as needed. Where appropriate, tlte Coalition will initiate a call for Congressional hearings and draft appropriate legislatio-

NCIA's Hoelter says, Tltere is widespread dissatisfaction witlt tlte Federal Sentencing Guidelines. The time has come to convert this dissatisfaction into positive action for change. This new Coalition s e e k to accomplish that change."

MEMORANDUM 12 June 1997

To: New and recently renewed TCDLA Members

From: John C. Boston Re: Mem&x%hip Directory

Good news, bad news: the good is that T C D L A is now over 1,900 strong (50 new members from Lubbock alone! thanks to affiliate LCDLA). T C D L A membership will soot hit 2,000. T h e bad news is that w e have distributed all of the 2,200 1996-97 directories that were printed last year. A s soon as the new members that have recently joined are entered in the database, w e will produce a new directory. (By the time you read this T C D L A will b e over 2,000, ed.)

W e will print the new directory based o n the membershi1 as o f 30 June. T h e proofreading, layout and printing lake four to six weeks. The time consuming aspect is carefirlly proofreading names addresses and telephone numbers. We ask fo r y o w p a t i e n c e during this time o f transition. If you have a n e-mail address please send it to the home office: U.S. Mail, fax o r [email protected].

Again, thanks for your patience and every member. get a member.

LIC: TCD1.A Executive Committee

David C u n n i n g h a m

K e n t Sehaf fe r (713) 228

Death Penalty Issues C y n t h i a H. On (210) 22

Finance & Office Ove Betty Blackwell (512) 47

Lawyers' Assistance: Robe~t C. H i n t o n (214)

Legislative Committe K e i t h H a t n p t o n (512) 47

Long Range Plannin Michael Heiske l l (817)

Membership: Randy W i l s o n (800) 588 4678

Practice Areas: Mark G. D a n i e l (817) 332 3822

W o m e ~ ~ S. Minorities: Lydia Clay- Jackson (409) 760 2889

Hall of Fame: D a v i d L. Bols ford (5 12) 480 9764

Insight from Ake, Rey and Moore hat is the contemporary perception of a jury con-

sultant? No doubt one visualizes an individual sitting at counsel table during voir dire discreetly passing notes. This article will examine and seek to illuminate the role of the modern jury consultant or trial scientist and the expertise available to the indigent

By Curtis E. Wills, PHD defendant and appointed counsel. Having extensive experience with

legal an$g%ychological consultation, the jury consultant will conduct research, analyze the results and offer a scientific judgment as opposed to an opinion or a guess. The contemporary jury consultant is a social researcher who applies information from community surveys, mock tri- als, focus groups, and previous voir dire experiences, to offer recom~nendations toward the goal of seating a fair and impartial jury.

Three factors o f the Ake test Re)!, a Texascase, reviewed Ake, in wllich the U.S. Supreme Court found the

failure to appoint a state funded psychiatrist constituted an error. Duc process requires to the basic tools, integral to ;III effective defense within our advers;~rial system. Ake set fort11 tlilee factors to require the State to provide all indigent del'e~l- dant with access to competent cxperl assistance. To secure an appointme~lt. the

defeudant must demonstrate to the Trial Court that, (1) the issue is anticipated to be a "significant factor" at trial, (2) the value the expert will add to the defense, (3) assessment of the risk of an inaccurate verdict if an expert is not appointed.

The first factor is the defendant's interest in the accuracy of the criminal proceeding. The second is the State's interest in having a fair and accurate adjudication without unnecessary expenditures of state funds. Ake has been found to apply to non-psychiatric experts such as patholo- gists, investigators and DNA analysts.

Justice Mansfield, in Reg, provided guidance for the trial Court in the Ake factors. In the first two factors, there is certainly little doubt that the accused (a capital defendant) always has an interest in an accurate result while the State has an equally strong interest in system integrity. The State's resources and interests can be protected only by providing experts to indigent defeudants meeting Ake requirements. Cost concerns should be given minimal weight. The Re), Court opined, we cannot conclude that the cost ($ 250 an hour) ... would be unmanageable. Judge Hand might consider the greater expenditure - the trial consultant or an error ~nandating a new trial.

Factor three addresses probable value and risk of error, requiring the Court 10 determine the probable value o f the expert assistance sought and the risk of error in the proceeding if the requested ;~ssist;~nce is not approved.

1 8 V O I C E I V O L 2 6 110 5 J U N E 9 7

The foundation - a fair and impartial jury Awareness of the perceptual p11enomc11011, illusory correli~.

tion offers insight into the problem. Its effect is pervasive. For example, if a duck is expected and the animal presented walks, talks, and looks like the expected feathered fowl, expectation leads us to believe it is, in fact, a duck. With high confidence and little or no investigatiou or v;~lidation research (lifting a feather), we believed the ~scsult was exactly what was expected - a fair and impartial verdict.

In the coistrEtion of our judicial system, a critical component of tlie foundation is the defendant's right to a jury tsial. This element can only be st~pported by a fair and impartial j u l y There exists a continuous need to monitor and review all functions of this indispensable safeguard. For every trial, the components of the foundation should be continually examined to verify the process will yield the intended design. A jury consultant can research the trial issues and through statistical analysis provide significant insight.

Ake, Rey, and Moore, discuss the use of expert consultation to insure a fair trial. Recent advances demonstrate the effec- tiveness of using trial science consultation and techniques during voir dire. This process serves to elevate awareness of the necessity for a "structurally correct" foundation.

As an architect would explain, to guarantee a good foundation, precise construction methods nnlst be followed. To meet the expected goal they must be sound, exact, and practically error free. The "architects" of our legal system embraced the idea that the jurj' would be the foundation of the process. Historically the primary focus has been on the extrinsic mani- festations of the jury process.

Using contemporary triai science methods, the foundation upon which each case depends can be validated. The use of behavioral and trial science will strengthen this framework. The goal of this consultation is to assist the systern to bring the expected goal, the right to be judged by a fair and impartial group, to fruition.

Reflecting upon this critical component of the foundation, did the jury produce a fair and impartial decision? Does it because it is? Does it because we expected it would? There is a need to c&ti%ually evaluate the foundation and, in the spirit of Ake, use trial science procedures to assist with the meta- morphosis and validate that the expected goal was reached.

Validation of a fair and impartial jury Historically, the focus of our structure has been directed

toward external issues, (for example, presentation and expo- sure) and not verification. However, if a jumr is psychologi- cally blind, biased or chooses not listen, it does not matter how loud we speak or what we say. The task of the modem july or consultant is to identify the psychological characteristics asso- ciated with itnintentional dissonance. While the classic impartial juror is needed, the ideal jumr must perceive, appreciate, and understand the issue. To reach a fair and impartial decision, the pacel_convened nn~s t follow the Courtis instructions, be dedicated to their values and not abdicate their conviction.

In some instances a lawyer may declare, 1 don't need ajury consultant! Is this statement a function of a perfect (no loss) record or is it an ul~verified assumption? Using research techniques of peer review, blind peer critique or post trio1 inter- view, authenticity can be substmti;~ted.

111 another an;~logy, consider ;I sky diver b o d n g a perfect jump record. There is no need to evalunte the nirworthiness of my "good ole tsied and trusted" parncl~uke. It's never failed before! When a failure is cxperie~~ced at 10,000 feet and the ground racing upward, i t may be too late fol- the diver or the attor-ney to reconsider this pl~ilosopl~y.

Likewise, it may be too late to examine fair trial issues for the capital murder defendant looking up from the gurney.

It is equally i~nportant to the systenl and to the defendant tllnt the twelfth vote is just as fnir and c~nbi;rsed, as the first. The issue is NOT whether the attorney needs a trial consultant, but rather, does Ake grant the defendam the right to the services of a trial consultant? The respective roles of the attorney and the trial consultant are, while autonomous, synergistic.

Establishing the need for the court appoint. ed jury consultant

During selection, were the psychological characteristics of each juror considered? \\'hat effect will a protracted trial have on the potential juror? What effect will beingsequestered have on a juroris ability to resist caving? What research and data were consulted concerning which personality types react to stress and vote with the majority to end the trial? Could the impact of the released juror have been more profound? Perhaps stress would enhance this juror's motivation to be true to the oath and self values? A skilled trial consultant can use an extensive archive and a trial science database to identify the profile of an ideal juror.

Ake, Re),, and Moore address the efficacy of a state funded consultant. In Rey, the court reported Ake is not limited to psychiatsic experts. A wide spectrum of professionals have been appointed. T h e court stated the necessity for the appointment under Ake will depend upon whetl~er the defendant has made a sufficient threshold showing of need for the expertise and assistance is necessary to address a significant issue at trial. Absent the requested jury consultant to insure the seating of a fair and inlpartial jury, the defendant was denied a basic tool and potcotially a fair opportunity to present his defense. By analogy, without mental health consultation, how does defendant's counsel know to raise the sanity issue? This dilemma is easily resolved with the services of a state funded expert.

The Moore Court opined that the defendant had not prof- fered evidence to establish that the expert assistance ... in selecting a jury was essential to developing and presenting his defense, without which his trial was rendered ful~da~nentally unfair. While ... the selection of a fair and impartial jury is crucial ..., the defendant presents no convincing argument that the expert assistance he sought was necessary to the selection of a fair jury. ..., appellant offered nothing but undeveloped asser- tions that the requested assistance would be beneficial.

In larger venues, is the fairlunfair line crossed when, during voir dire, a career prosecutor wit11 experience e a r ~ ~ e d from many capital c ims faces a competent attorney with limited zapital experience. Confsonti~rg the reality of, between ;I rock nd a Iwd place, does thc responsible defense attorney seek ppoiotment of a trial consulla~~t ;~nd give rise for ir~effcctive ounsel ;~llegations or worst. By analogy, is it viewed as esponsible when the primary care physiciun cot~sul ts ;I

~ntl~ologist?

Consultation on community issues and venue In addressing the issue, Moore appears to give direction for

ltes es- cue ifi- an on ect ors

defendants requesting this pivotal trial component. Ake sla that the defendant is entitled to consultation when it is nec sary to address a significant issue at trial. Can anyone ari that a fair trial, the foundation of the process, is not a sign cant issue? From Beets, the defendant must demonstrate a'ctual, identifiable prejudice attributable to that publicity the part members of his jury, and that the prejudicial eff has so permeated the community that the prospective jur, prejudicial o p i n i p cannot be set aside. How do we scient~ cally e x a ~ i n e this issue?

When venue is examined, community leaders and "imp tial" media representatives from the targeted environment, : asked to &objectively guessi about the impact of their produ Can the system really expect media representatives to test that their product inflamed and prejudiced the public? Moore, the Sheriff testified that there had been no untow: concern in Copperas Cove about appellant. Was this a guer Upon w11at research was it based? Was it assumed these o p ions, although persuasive, represented what a more scienti cally based connnunitp survey would have yielded? TI dichotomy must be resolved.

The modern trial consultant has a repertoire of resear techniques; the comnntnity attitude survey, mock jury st11 ies, focus groups, jury selection and an extensive data base experience from many jury questionnaires. In reality withc the trial consultant provided by Ake to address the fair tr issne and the risk of an inaccurate verdict, how can it be ve fied that the defendant was adjudicated by a fair jur Sharing fresh hot bread without a k ~ ~ i f e is like a fair tri without a trial consultant, itis not impossible; but it offc many advantages.

While the defendant asserted that most persons in Copper Cove were terrified of him, and worried that he might I released, it ml~st be pointed out that the trial Court denied hi the ibasic toolsi wit11 which to gather and present the e\ dence. How can one expect a tree to be efficiently felled wit out providing a basic tool - an axe? Had the trial Court be1 informed about the modern role of the trial consultant, tl request pro9bly would have been granted. Using the skil, research, consultation and testimony of the experienced tri consultant, evidence and information about juror issues cou have been offered about community attitudes. Further, tl

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ifi- i I

ar- .i are i Ct. i ify i In / ~ r d j is? / in- / fi- / iis /

ch i ld- j of / but i ial i ri- i y? ial ; :rs /

as be m ri- ll- :I1

he IS, a1 Id le

declaratio~~, no st persons, can orlly be valid;tted by an accurate scientific co~nmunity survey.

When the decision to change venue is made, was the new site selected using a scientific investigation (community attitude survey), co~~venience or availability? Was the selected site more or less prejudiced toward capital crimes? Was the new venue examined for the probability of seating a fair jury? Did the move improve or reduce the probability of a fair trial?

The problem: consultation sequence As with other Ake mental health consultant, the typical

sequence involves obtaining Court approval and then retain- ing the expert. The expert prepares for the consultation by reviewing case materials, conducting an examination and reporting panel lo the defense attorney. The ultimate use of tl~is or any consultant is a decision of the attorney. To proffer evidence, an expert testifies, ex parte, to inform the Conrt about the process. With this knowledge and relying on Ake and Moore, the Court can evaluate the need, impact, reliabili- ty, and scientific validity of the consultation including how the expert is used by the defense, to resolve appointment issues.

The Moore Court noted that the defendant produced no evidence and failed to appoint a trial or jury consultant. Odd as it may sound, the jury consultant, whose role it would have beer] to gather evidence, examine venue issues, disseminate information, and develop an ideal juror profile, was not approved. Just as Ake sought to afford each defendant access to a consultant, the Moore Court failed to meet the Ake factors by appointing a trial scientist or jury consultant to examine this issne.

By analogy, what success would the swim team expect if access to the pool was denied and the coach was forced to enroll the team in diving and swimming courses by corre- spondence? A water filled pool and the trial consultant are, no doubt, basic tools.

For example, in the Oklahoma bombing case, after a jury consultant statistically analyzed the results of a comn~unity survey, testified about venue, the case was moved. Here the Eoult appears to have placed value in the role of the modern trial consultant. These advances assist a Court to make deci- i ons at a higher level of scientific certainty. The Moore Court lppenrs to be reacting to the old stereotypical perception that I jury consultantis only role is to sit in during voir dire and ~dvise the attorney on strikes.

Research continues to demonstrate that voir dire decisions lased the observation of non-verbal behavior and social pre- ;entations (the brand color of clothes or accessories) are not d i d . As with many psychological issues, if itis observable, it :an be disguised and is therefore, unreliable. Demographics )r stereotypes, particularly about race, sex or, have not proven ~redictive. Selection based upon these methods is not only nvalid, but impossible.

Summary The day when the jury consoltant attends voir dire, looks in

he juroris eyes and makes a decision without significant )ackground study of specific case issues, has passed. Defense Ittorneys ;ire urged to (iresell1 lcstitnony, substantiate and ) ropwly wgue the specifics i n the case whic11 can be

20 V O I C E . \aOL 2 6 110 5 J U l l E 9 7

addressed within the role of the contemporary trid consultiint. With this information the Court can rule on the fundamental fairness cited by Ake, Rey and Moore.

Psychological issues about individual beliefs, attitudes, relationships and life experiences are significant in trial science. Trial science studies validate the use of these variables as predictors of behavior. For the capital defendant, the fair and impartial trial issue is addressed by providing the best defense attorneys and prosecutors available. Many benefits accrue to sockety and to the system when a defendant is judged by a fair and impartial jury. How is a skilled, experienced consultant identified? As with any area (a computer specialist), especially one that demands demonstrated competency in law, psycl~ology and technology, the attorney is well advised to seek collegial consultation.

Trial consultant: selection issues Do I need another attorney? Do I need a psychologist? Do I need a trial scientist experienced in law and psychologi-

cal research? What kinds of skills and experiences does the consultant have

to offer? What kind of data base does the expert have to enhance the

consultation? What kind of case specific archive data is available to the

consultant?

Does the trial co~~sultant have irccess lo s group oi trial science specialists with which to staff the case?

Does the consultant have a full menu of tri:tl science tech- nologies available?

Since there are no licensing boanls for trial consultants, what additional credentials should a trial consultant have to con]- plement those of the defense attorney?

Does the corlsultant have experience testifying about the need for a jury consultant?

AKE v. OKLAHOMA, 470 U. S. 68,84 L. Ed. 2d 53, 105 S. Ct 1087 (1985) BEElS v. STATE, 767 S.W.2d 71 I , (Tex. Crim. App. 1987) MOORE V. STATE, No. 71,972, (Tex. Crim. App. 1996) REY 1'. STATE, 897 S.W.2d 333; (Tex. Crim. App. 1995)

Curtis E. Wills, a consulting forensic psychologist, is a professor emeritus in the College of Graduate Studies at Lamar University, Beaumont, Texas. His doctoral dissertation focused o n the study of perception. T h e f o c a s of recent research efforts has been to determine what information is within the common understanding of the typical juror. He tes- :ifies frequently on wide variety of psyct~ologicol issues, per- forms jury studies and supervises community attitude surveys. His previous article for the VOICE OF THE DEFENSE was Child Abuse Hvsteria: it won't go awav).

NEWS FROM CAPITAL MURDER HABEAS CORPUS TASK FORCE

Creation of the

(TCLAP)

n March 12,1997, the Co-Chairmen o f the

TCDLA's Capital Murder Amicus and

Habeas Corpus Committees, David A. Schulman,

and Roy E. Greenwood, along with Cynthia Hujar

On, a TCDLA Director, have formed the TCLAP, a

non-profit corporation, dedicated to assisting Texas

attorneys in providing legal advice, legal rnanuals

and suggested forms for lawyers representing indi-

gent defendants at .the various stages o f capital

murder cases.

TCLAP & ful'tunate that many highly respected attorneys joined the Board of Advisors, including: Waggoner Carr, for- nler Attorney General of the State of Texas; Dean Prank Newton, Dean, Texas Tech School of Law and President- Elect of the State Bar of Texas; Judge Larry Gist, Senior Presiding Judge of the Criminal District Court of Jefferson County ; Judge Jay Bumett, Presiding Judge,l85th District Court in Houstoo; Louis Dugas from Omnge, past President of TCDLA; Gerald Goldstein, from San Antonio, past President of TCDLA and the NACDL; David Botsford, Immediate Past President of TCDLA; John Roston, Executive Director, TCDLA, and the Honorable Catherine Burnett, Law Professor, South Texas University Law School. (Dean Barbara Aldave, St. Mary's Scl~ool of IAW, also joined the TCLAP Board of Ad\'isoss since this article was submitted fol- publication;edT)

By Roy E. Greenwood

22 V O I C E . V O L 1 G 1.10 5 J U l l E 9 7

THE NEED FOR TCLAP In 1995, the Legislature enacted Article 11.071, C.C.P, to

expedite death penalty appeal and habeas cospus proceedings, requiring, that counsel be appointed by the State to represent these defendants in their state habeas corpus litigation. However, because the funding was cut by 50% at the last minute, the Court of Criminal Appeals was unable to appoint counsel to represent all defendants. Thus, the first attorneys were not appointed until some eight months after the effective date of the Act.

This would have not caused a serious problem, except for more delay, had it not been for the federal Anti-Terrorism and Effective Death Penalty Act that went into effect on April 24, 1996, which required all death row inmates in the United States to file, their federal habeas corpus petitions in some cou~i , either state or federal, within one (1) year of the conviction becoming final.

The enactment of the federal statute has caused a crisis situation in the State of Texas. With the enactment of the two new habeas statutes, the termination of the Texas Resource Center, and the reduction in funds available to appoint attorneys, the Court of Criminal Appeals was placed in an impossible situation as to the implementation of Art.11.071. There were not available counsel who feel qualified to accept these cases, and without some outside guidance by experts in the field, lawyers are simply refusing to volunteer for the appointments, or are withdrawing from these cases when appointed by the Court.

Because of these problems, the inadequacy of the systelll will result in many death row inmates being denied their rights to fair and complete access to the federal courts for review of serious questions of law applicable in many of these cases.

P L A N OF ACTION Ihvid, Cyt~tllie and I, ;IS the Directors of TCLAP, are

; ~ t t e ~ ~ ~ p t i n g to secuse funding firom various sourccs, including

the Legislature, the Court of Criminal Appeals, the ABA, and the State Bar Association, where grant moneys may be available. We hope to convince these entities, as well as other private sources, that contributions or grants will be justified in providing the followi~~g se~vices:

I. CASE TRACKING: At present, there is no one place that keeps accurate records of the status of Death Penalty cases in Texas. We hope to create a lreal time? database for eachdeEndant, within days of his conviction, and be able tb trace his case throughout the courts for the tenure of his litigation, being able to provide this information to any entity, most probably, the Legislature.

2. CONSULTATION: Since there is no longer any central location for expert advice and consultation for appointed attorneys, and because the Conrt of Criminal Appeals will not appoint co--counsel in habeas cases, individual attorneys have no expert support in their case preparation. We hope to serve a vital isupport function? by providing answers on questions about death penalty law, including habeas policy and procedure, with regard to this ever changing field of law.

3. RESEARCH MATERIALS: There is no authoritative legal manual available to Texas attorneys on the new Federal and State habeas statutes. We are compiling a Legal Manual on issues concerning death penalty law, motion practice, appellate procedure and habeas corpus for appointed counsel, or lawyers who contemplate applying for an appointment from the Court of Criminal Appeals. We want to provide computer aided copies of all these materials for immediate transmission to the attorneys, by computer diskette or E-Mail service, in order to prevent further delays.

4. COURT LIAISON: The Court of Criminal Appeals has recently created a special Committee to handle all motions in capital habeas cases, in order to promote uni- formity% 8sposition of these motions. In order to save time and the expenses, we believe that TCLAP could act as liaison to submit these materials immediately to the Coun, thus expediting these rulings.

5. CLE ACTIVITY: The TCDLA is the only entity in the State that provides continuous CLE training in the field of criminal law. Because of the financial situation, the Association was unable to procure additional funds for maintaining continuous programs for these death penalty cases. TCLAP hopes to provide continuous CLE services, in cooperation with the TCDLA, to help train lawyers in these cases.

LlMlTATl0.NS-ON TCLAP Because of the shear number of such cases, and our desire

to keep the funding needed to a minimum, TCLAP lawyers will not actually represent any individual capital murder defendant, appellant or habeas petitioner in any pending case. The sole and only purpose is to assist the attorneys in their representation of these clients.

It has been ilnpossible to obtain any funding for TCLAP during this session of the Legislature. We have applied to be Internal Kevenuc Service for a Section 503(c) tax exemption, and it is hoped that this icharitable organization designation? will be granted in the next two months. For this reason, we are not, at this time, soliciting contributions from private sources, as these contributions will not be tax deductible until the IRS approves our exemption status.

Thus, TCLAP presently has no funds for the purchase of printing supplies, computers, or for hiring any staff. David, Cynthia and I are manning the phones and answering these questions as best we can, and without funding we cannot complete publication the Legal Manual. However, we will accept calls from any attorney who needs assistance, notwith- standing our lack of funding, as time deadlines are crucial, and we believe that we can provide some assistance to appointed attorneys in these matters.

For Further Information Contact: TCLAP mai l ing address-P.O. Box 163325, Austin, Texas, 787161--3325; E- Mail address [email protected]; Toll Free Phone #-I-888- 622-4325: Fax-1-512-443-6298

N a v m e &Associates 313 E. Rundberg, Suite 1

Austin, Texas 78753 512/836-4567

By Christopher N. Hoover

erhaps no constitutional

right enjoyed by

Americans is more fundamental -

or more widely acknowledged -

than the Fifth Amendment's pro-

tection for the defendant from

being compelled by the govern-

ment to give testimony against

himself. But this right in the U.S. Constitution, as inter-

preted by the federal courts, merely protects the accused

from being forced to give potentially incriminating "testi-

mony" at his own trial

The Texas constitution provides even greater protections Article I, Section 9 provides t l ~ t witizen may not be con~pelled to produce "evidence" against himself. These ri& would seem to guarantee the precept that every defendant in a criminal case enjoys a presumption of innoceoce.

Unfortunately, these protections begin to deteriorate when it comes to the rights of drivers accused of driving while intoxicated (DWI). With the possible exeception of drug related cases, the erosion of Americans' rights is nowhere more apparent than in the area of DWI legislation.

Consider: although both our federal and state constitutions generally forbid the government from compelling the accused from testifying against himself, state law now virtually mandates it in the area of DWIs.

The "option" offered by that great legill fiction, the "implied consent" law is no option at all. The doctrine of implied consent proposes that because ;I citizerl 110s sought thestafe's pernlission to operate a motor vehicle on a public roadway (by obtaining a driver's license), he has also "impliedlp conseoted" to give the government a "voluntary" sample oS11is breath, blood, or urine if suspected of DWI. Yet, i f the drivel- refuses to give the sample - wllich every state admits is his right - he must face even more dire consequences.

If the driver agrees to the sample, the results will be used against him; if he refuses, the evidence of his refusal is adtnissable in court, and may be argued as a circumstance implying that had he not been intoxicated, he would not have refused to provide the specimen.

A similar issue was settled years ago, when the US . Supreme Court held that the government could not argue that the fact of a defendant's refusal to testify on his own behalf must mean that he must have something to hide.

Apparently, that rule doesn't apply to the political hot potato of dmnk driving.

T h e increased criminalization of DWI has been politically motivated. The federal go\'ernnment, reacting to a series of high. profile efforts spear- headed by anti-drunk driving activists (and, in turn, supported by voters), began applying economic pressure to states to enact more stringent DWI legislation.

"Implied consent" grew out of these pressures. Yet the theory of "implied consent" is in direct contrast to the basic rights to which all citizens are entitled.

Because of public intolerance o f DWIs has been s o vocal, those who imposed such in t rus ive legislation have been branded opponents of the public good.

Such a reactionary position only tends to tr ivial ize the seriousness of this important constitutional debate.

Proponents of DWI laws llave been so fanatical in their eCfolrs that the), would prefer the public not be aware of some ;utonishing facts. For example:

The Intoxilyzer test is conducted by a 1:1w enforce~nent oflicer. No

non-law enforcement outside testing 01- criticism of the technology is tolerated.

The scientific director of the Texas Department of Public Safety is unaware of the Intoxilyzer's specific programming. The manufacturer of this machine with- holds this infornlation under the ruse of national securi- tyltrade secrets. Of course, that same tnanufacturer derives its income directly from sales of its ~nachines to the governsent.

. A driver cannot ask to speak to his attorney before providing a sample without suffering the presumption that he has refused the tests - which, in turn, often leads to a presumption of his guilt.

A recently enacted Texas statute uow requires that as a condition of release from jail pending trial a defendant suspected of a second DWI offense must install a deep lung analyzer on his car that prevents ignition if alcohol is detected on the operator's breath. Even a first year law student would realize that this rule naturally pre- sumes the guilt of the accused, not his innocence.

Clearly, the opportunity for abuse in the system is simply too great to permit such intrusions into peoples' lives. Recently, a suburban police force was found to cruise the parking lots of local bars, running a computer check on license plates and stopping those cars whose owners had a

pr ior arrest or conviction on DWI. Such occur rence d e n ~ o ~ ~ s t r a t e s how quickly overaggressive leglsli~lion and prosecution can be abused by those swor~t to protect and serve the people.

Constitutional rights are like good habits; both are not easily obtained and tend to be lost gradually, on an almost imperceptible basis. Once gone, they are exceedingly difficult to revive.

Perhaps the solution to this problem is to treat the crime of driving while intoxicated as every other crime, but it is not. For example, deferred adjudication is available for everything from a minor traffic infraction to manslaugher, but DWI.

This may seem a harsh and revolutionary suggestion, but in the larger scheme it is preferable to the slow and insidious subversion of our constitutional rights.*

. . Christopher N. Hoover, P.C. is a native Dallasite. H e

received his J .D. and undergraduate degrees from the University of Mississippi. Mr. Hoover is also a graduate of Cistercian Preparatory School.

Among his many impressive credentials include being a founding member of the National College of DUI Defense Attornies whose programs are conducted at the Harvzd Law School. He is nationally certified in field sobriety testing and is a celiified Breath Test Machine Ooerator.

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6 6 aw-abiding Texans,

hold on to your hats.

We have another " runaway

train," and it is again driven by a

reckless, careless, and mischie-

vous driver, Judge Maloney."

With these words, more appropri-

ate for a campaign speech than a i By Gary A. "dashen judicial opinion, former Judge

White of the Court of Criminal

Appeals began his dissent in Clewis 1). State, 922 S.W.2d

126 (Tex. Crim. App. 1996) Judge White predicted a

monumental shift in appellate jurisprudence as a result of

Clewis. However, the aftermath of the opinion has been

far less significant. In Clerelis, the Court of Criminal Appeals, by a razor-thin majoriy, held that

the Courts f &peals have the authority to engage in factual sufficiency review in criminafcises. The Clewis court, in an opinion by former Judge Maloney, found that the Texas Constitution grants the courts of appeals conclusive jurisdiction on all questions of fact. Additionally, the Court held that the legislature has authorized the courts of appeals to reverse a conviction "as well upon the law as upon the facts."

According to Clewis, the proper standard for reviewing the factual sufficiency of the elernents of an offewe is the one articulated by the Third Court of Appeals. That standard requires an appellate court to review,

". . . all the evidence without the prisln of "in the light most favorable to the prosecution.'' Because the court is not bound to view the evidence in the light most favorable to the prosecution, it may consider the testimony of the defense witr~esses and the existence of alternative hypotheses. The court [can] set aside the verdict only if i t is so contrary to the o!'erwhelming weight of the evidence ;is to be clearly wrong and unjust."

- - Slam 1,. Slale, 823 S.\\'.2d 375, 831 (Tes. App. - Austin 1992, pet. rcf'd

unti~nely filcd). See ; h o , ll'lrire 1,. Slrrrc, 890 S.\4'.2d 131 (Tes . App. -- Tex;rrk;l~l;k 199.1, ~ l o pet.) (finding cvidel~ce C;lctually insufficient).

I n conducting ;l lilctu;~l sufliciency review, the Court of Appe;~ls 111ay review

the trial court's or jury's weighing of the evidence and may disagree with the trial court's or jury's determination.

In T.J. Jones v. Stole, No. 72,026 (Tex. Crim. App., opinion Dec. 18, 1996), the Court added the following additional explanation of the manner of conducting factual sufficiency review. In Jones, the Court stated:

"The factual sufficiency review process begins with the assumption that the evidence is legally sufficient under the Jackson test . Clewis, 922 S.W.2d at 134. The appellate court then considers all of the evidence in the record related to appellanti's sufficiency challenge; not just the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compares it to the evidence which tends to disprove that fact. See, e.g., Ellis Counly Slate Bank 1'. Keever, 915 S.W.2d 478, 479 (Tex. 1995); Tronspormrio~t 111s. Co. 11. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). The court is authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133; 111 re King Estate, 150 Tex. 662, 244 S.W.2d 660,661 (Tex. 1951).

However, a factual sufficiency review tliust be appropriately defer- ential so as to avoid the appellate court's substituting its own judgment for that of the fact finder. Clewis, 922 S.W.2d at 133. The court's evaluation should not sub- stantially intrude upon the jury's lalc as the sole judge of the weight and credibility of witness testimo- ~ny. See e.g., Pool 18. Ford Molar Corrrpany, 715 S.W.2d 629. 635 (Tex. 1986); 1h10ir 18. IV~/.TIIII~ I50 Tcx. 273, 239 S.W.2d 792, 796 (1951); 11, rc Tlr t~~r~a. 873 S.\V.2d 477. 485 (1994). The iq~pellnte

26 V O I C E . V O L 2 6 1 1 0 . 5 JUII1 9 7

court maintains this deference to the jury's findings. b) finding fault only when "the verdict is g gain st the grea weight of the evidence presented n t trial so us to be clear ly wrong and unjust." Clen'is, 922 S.W.2d at 135 (Emphasis in original.) Examples of suc11 a wrong anc unjust verdict include instances in which the jury's find. ing is "manifestly unjust," "shocks thc conscience." oi "clearly demonstrates bias." Clewis, 922 S.W.2d at 135 citing Merctz v. State, 785 S.W.2d 146, 149 (Tex. Crim App. 199@ We explained this limitation on factual sufficiency analysis in Clewis:

Appellate courts should only exercise their faci jurisdiction to prevent a manifestly unjust result . . those courts "are not free to reweigh the evidence anc set aside a jury verdict merely because the judges feel that a different result is more reasonable."

Clewis, 922 S.W.2d at 135, quoting Pool, 715 S.W.2d at 634. Even if the reviewing court does discover that the verdict is against the great weight of the evidence and will return a manifestly unjust result, the court may no! render or substitute its judgment for that of the jury. Its only option is to vacate the conviction and remand the case for a new trial.

Clewis did cause one significant change in appellate jurisprudence. Many more challenges to factual sufficiency have been presented to appellate courts, post Clewis. However, the vast majority of these challenges have been summarily rejected by the Courts of Appeals. A review of post-Clewis case law shows that very few appellants have convinced the appellate courts to reverse their convictions on factual sufficiency grounds.

However, there have been a handful of appellants who have met the daunting challenge of convincing a Court of Appeals to reverse their convictions on factual sufficiency grounds. While this is hardly the "runaway train" predicted by Judge White, the e c ses do demonstrate that there is some hope $ 4 based upon factual sufficiency review for those appellants whose convictions are truly unjust.

The following three cases show the type of situations where factual sufficiency challenges have been successful.

In Perkirts v. State, 940 S.W.2d 365 (Tex. App.-Waco 19971, the Court found the evidence in a D.W.I. prosecution to be legally sufficient but factually insufficient. The evidence presented was that at 11:OO P.M. a Dallas firefighter found the defendant in a parked car, in the middle of the street, slumped over the steering wheel and passed out. The firefighter testified that the defendant smelled of alcohol and that he noticed beer cans in the backseat.

A police officer was sutnmoned who testified that he believed the defendant was intoxicated. He said the defendant had alcohol on his breath, slurred speech and an unsteady stance. The defendant was arrested and refused to take a breath or blood test. He was videotaped within forty minutes of his arrest.

The defendant testified that he was not intoxicated. He had spent the day with his children, left them about 9:00 P.M., went to wash his car, and had a beer while doing so. He w;u

wit11 a friend named Thonipsoti at the car wash. He left the car wash to go to ;i friend's liouse, liad stopped his car to look at a Mapsco, and was leaning forward when the firefighter approached him. He also testified that he told thc officer that he had drunk one beer and that he had a warrant out for his arrest for a D.W.I. probation viola ti or^.

The defendant's friend, Tl~ompson, testified that he was with the defendant until 9:45 P.M. He said the defendant drank one beer at the car wash and that the defendant was not intoxicated.

In finding this evidence to be factually insufficient, the Court noted that the firefighter testified that the Defendant seemed to be intoxicated, but that he did not know for sure and that it was just an assumption on his part. The Court also noted that the firefighter saw beer cans in the back seat, but no open containers in the front compartment of the car.

The Court also stated that the defendant admitted to drinking one beer, accounting for the smell of alcohol. There was no evidence that he drank more than one beer. Additionally, the police officer did not see beer cans in thk defendantis car and the defendant denied there were any beer cans in his car.

In response to the officer's testimony regarding slurred speech, disorientation and an unsteady balance, the Court cited the defendantis testimony that he had worked since early morning putting together a show for children at a recreation ceuter and was weary. Additionally, the Court of Appeals viewed the videotape and concluded that it failed to demonstrate that the defendant was intoxicated or nientally or physi- cally impaired. Regarding the videb, the Court stated

"On the videotape, the defendant was cooperative wit11 the officers, spoke clearly and was able to follow direc- tions. He did not stumble, fall down, or appear in any way disoriented. He recited the alphabet without error. He counted backwards from thirty-eight to twenty-two with only one error. The videotape demonstrates that the appellant was not intoxicated."

Based on their review of the evidence, the Court of Appeals found the evidence factually insufficient. The Perkins case is important because it established the correct manner of review in a common, typical D.W.I. case.

In Gnffrrey v. State, 940 S.W.2d 682 (Tex. App.-Texarkana 1996) the Court found factual insufficiency in a kidnapping m e . In Gofile): the alleged kidnapping victim testified that l e willingly let the defendant into his car to take him to get jome gas. They went several places together and the victim said the defendant never commanded or ordered him to do mything. The only alleged tlueat was the defendant telling the victim he had a Glock and was going to "Glock" some people. However, the victim was never shown a gun. The victim also ~cknowledged that they stopped at several places and that the jefendant got out of the car, giving the victim an oppoltunity o drive away. Under these circumstances, the Court of 4ppeals found the evidence factually insufficient to establish dnapping. The Court had found the evidence legally suffi- :ient under the Jackson standard, but concluded that

"...tl~e cvidcncc, when not viewed i n the liglit most favorable to the verdict, showed that it is so contrary to the ove~whelnling weight of the evidence as to be clearly wrong and u~~ju>t."

In Rcirm v. State. 940 S.W.2d 770 (Tex. Ann.-Austin 1997). j The Court also noted that an eve-witness who saw the attack

I

. . . .

the Court found the evidence legally sufficient, under the Jackson standard, to support a conviction for attempted mur- del- and engaging in organized criminal activity. However, the Court found the evidence factually insufficient under the Clewis standard.

The evidence in Reina, shows that two other persons, Carlson and Brown, attacked a homeless person, severely beat him and set him afire. Defendant Reina was with the other two persons at a convenience store, when Carlson and Brown encountered the-~ictim and got into an argument. The other two men kicked and stotnped the victim and set him on fire. The only evidence supporting Reinais involvement is the testimony of another person that Reina threw a rock and hit the victim at the beginning of the incident and that Reina had been illvolved in an argutnent with the victim earlier in the day.

The Court of Appeals found the evidence to be factually insufficient because the evidence did not show that Reina meant to kill the victim or encouraged his companions to do so. Additionally, there was no description given of the size of the rock or the manner in which it was thrown. Moreover, the testimony about Reina throwing the rock, and his alleged argument with the victim earlier in the day came only from hearsay testimol~y of a person who was not at the incident, but was reporting what other persons had allegedly told him.

Additionally, co-defendant Brown testified that Reina was not involved in the attack and had no knowledge of the crime.

testified that only two people attacked the victim and identified those two people as Carlson and Brown. The victim also told police that he was attacked by two, not three, people.

The Coult of Appeals found this evidence to be factually insufficient to prove the attempted murder charge. The Court found that the great weight of the evidence did not support the conclusion that Reina participated in the combination to plan an attack or any criminal activity that could foreseeably lead to an attack. Therefore, !he evidence was also factually insufficient to support the conviction for engaging in organized criminal activity.

CONCLUSION The factual situations in Perkins, Gnfltey, and Rebm show

the diversity of cases in which a factual sufficiency challenge may have some merit. However, these cases must be com- pared to the numerous other cases where courts have rejected this challenge. Each case should be evaluated based on its individual characteristics with a view towards convincing the appellate court that the verdict is unjust and should not be allowed to stand. *

Gary A. Udashen is a partner in the Dallas firm of Milner, Lobel, Goranson, Sorrels, Udashen & Wells. He is Board Certified in Criminal Law by 'the Texas Board of Legal Specializatio~l and the National Board of Trial Advocacy. He IS also feature articles editor for the Voice for the Defense.

A Announces

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28 V O I C E - V O L 2 G 110.5 J U M E 9 7

kills Course July 17-18, 1997

Waco, Texas Waco Hilton

8 3 5 a.m. - 8:45 a.m. Registration

8:45 a.m. - 9:00 a.m. Welcome & Opening Remarks

9:00 a.m. - 10:OO a.m. PRESERVATION OF ERROR NED BARNETT. Houston

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lO: l5 a.m. - l l : l 5 a.m. CYBERSPACE OFFICE E.X. MARTIN. Dallas

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12:15 p.m. - 1:45 p.m. Lunch (on your own)

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What To Do With Incriminating Evidence

By Ronald 1. Goranson

n October, 1996, I represented

an attorney who was arrested

and filed on for tampering with

physical evidence, contrary to 5 37.09 of the Penal Code:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1) alters, destroys, o r conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;

a third degree felony. A Grand Jury returned a "No Bill" on March 6, 1997. The attorney has asked me to write a short summary of the legal issues involved so that other criminal defense lawyers can avoid some of the stress with which he lived for five months.

Abstract Factual Situation A lawyer receives a call from a potential client that a crime may have been

committed; counsel determines a crime was committed. During the preliminary negotiations, the client asks if it is permissible to move potential evidence from a public place to a more secul-e, private place. The attorney calls other attorneys who advise that they think it is permissible to move the evidence, a?+lo$g as the evidence is not changed or harmed in anyway. This advise i\ gwen to the client, who follows the advise. The evidence is not changed or harmed. Photographs of the evidence are made so that defense counsel will have an accurate record of what the evidence looked like before it was ultimately to be given to the police. Counsel begins preparations to contact the prosecuting attorney. The police execute a search wamant and find the evidence before counsel has had an opportunity to surrender it.

Texas Disciplinary Standard The Disciplinary Rules provide: Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not:

(a) unlawfully obstruct anot1ie1- party's access to evidence; in anticipation of a dispute unlawfull)~ alter, destroy or conceal a document or other materi- 31 that a colupetent lawyer would believe has potential or actual evidentisry wlue; or counsel or assist anotlier person to do any such act.

'I'lie Comments to this section provide: I . The pl-ocedule of the ;~dvers;~ry systcni contemplates that the evide~~ce

in a case is to be marshaled compet- itively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures, and the like.

2. Documents and other evidence are often essential to establish a claim or defense. The right of a party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed o r destroyed. Applicable law in tnany jur isdic t ions , inc luding Texas , makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. S e e Texas Penal Code, $5 37.09(a)(l), 37.10(a)(3). See also 18 U.S.C. $5 1501-1515. Falsifying evidence is also generally a c r imina l of fense . Id . $§37.09(a)(2), 37.10(a)(l) , (2). Paragraph (a) of this Rule applies to evident iary mater ia l genera l ly , including computerized information.

A fair reading o f these provisions clearly require production through subpoena or d i scovery . T h e r e d o not appear to be any cases similar to the facts above.

Case Law Case law in other states enlarge the

requirement to produce by requiring production without demand after a reasonable per iod o f t ime. S e e C o ~ ~ ~ n ~ o ~ n ~ ~ e a l t l ~ 1,. Sfotl~nch, 514 A. 2d 114 (Penn. Superior Court 1986)("[Al crinlinal defense attorney in possession of physical evidence incriminating his

client may, after a reasonable time for examin~~tiot~, rcutrr~ it to its source i f he can do so witl~out hindering the apprehension, prosecution, conviction or punishment of another and without altering, destroying or concealing it or impairing its verity or availability in any proceeding or imminent investigation or proceeding. Otherwise, he must deliver it to the prosecution on his own motion.") and Stare v. Ohvell, 394 P. 2d 681 (Wash. Sup. Ct. 1964) ("Such evidence given the attorney during legal consultation for information purposes and used by the attorney in preparing the defense of his clientis case whether or not the case ever goes to trial, could clearly be withheld for a reasonable period of time. It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion, turn the same over to the prosecution.") In People v. Meredith, 29 Cal. 3d 682, 175 Cal. Rptr. 612, 631 P. 2d 46 (1981), the Supreme Court of California held that physical evidence can be removed from its original situs and possessed by a defendantis attorney for a reasonable period of time for purpose of examination and investigation.

A. People v. Belge In People v. Belge, 8 3 Misc.2d 186, 372 N.Y.S.2d 798

(1975), a defense attorney was prosecuted after his representation of a client charged with murder. During preparation for trial, the client revealed that he had committed three other murders. The defense attorney used information supplied from the client to find one of the bodies from the murders. The attorney did not reveal that he found this body. Instead, this evidence was disclosed during trial in support of the client's plea of insanity. "[A] hue and cry went up from the press and other news media suggesting that the attorneys should be found guilty of such crimes as obstruction of justice or becoming an accomplice after the fact. From a layman's standpoint, this certainly was a logical conclusion. However, the constitution of the United States of America attempts to preserve the dignity of the individual and to do that guaran- tees him the services of an attorney who will bring to the bar

every conceivable protection from the against such rights as are vested in the

constitution for one accused of crime. Among those substantial constitutional rights is that a defendant does not have to incriminate himself. His attorneys were bound to uphold that concept and maintain what has been called a sacred trust of confidentiality!' Id, at 801-802. Eventually, the attorney who found the body was charged with violating two statutes: one which required a decent burial be accorded the dead and the second which required that anyone knowing of the death of a person without medical assistance report the same to proper authorities. The court dismissed the indictment (and both charges). The court reasoned that there must always be a conflict between the obstruction of the administration of criminal justice and the preservation of the right against self-incrimina- tion which permeates the mind of the attorney as the alter ego of his client. Id. at 803.

Beige is significant in that it describes the inherent conflict between the job of the defense attorney and the pursuit of truth in a criminal trial. At the same time, however, it must be realized that this conflict is actually inherent between the fourth through sixth amendments nrld the pursuit of truth.

The bottom line is tlmt the right to not have to incriminate one's self, and the right to itssistar~cc of counsel, are aimed at protecting tlie individual mt lw then emphasizing tlie interest of the criminal justice system.

B. Stenhath Detailed The court in Contrrron~ueulth 11. Ste1111(1ch , 514 A.2d 114

(Superior Court. Penn. 1985) addressed the issue of whether two defense attorneys were properly convicted of tampering with evidence. The Pennsylvania statute was virtually identi- cal to the current Texas statute. A client charged with murder revealed to his attorneys where they could find the rifle stock which was used in the murder. The attorneys' investigator recovered this piece of evidence and the attorneys held it in their office. On the fourth day of trial, during an in camera hearing, the prosecutor questioned the investigator about the rifle stock. Subsequently, the judge ordered its production. Id. at 116.

After the trial, the two defense attorneys were charged with hindering prosecution and tampering with-vidence. Subsequent to their conviction, they appealed. The court vacated the sentence of the defendants, holding that the statutes were vague and overbroad. Analysis of the court's op in ion p rov ides ins igh t a s t o t h e Tamper ing wi th Evidence statute, as well as the difficult issues facing defense attorneys.

Before addressing the constitutionality of the statute, the Stetthach court discussed the issue of privilege. The privilege issue concerned whether physical evidence given to an attorney (by his client or the client's agent) is privileged (and exempt from disclosure to the prosecution). The law is clear: such evidence is not privileged. If such privilege was so easily attained, law offices would becoine depositories for instru- mentalities of crime. The law of privilege is equally clear: the absence of such a privilege does not imply a duty to immediately disclose or surrender evidence to the prosecutor.

The absence of a duty to immediately disclose evidence is crucial. Cases concerning privilege, such as Stenl~ach, make slear that a defense attorney may possess physical evidence For a reasonable period of time. While there is no privilege allowing the attorney to permanently withhold the evidence, there is also no law, duty, or even ethical obligation to imme- iiately disclose or turn over such evidence. Rather,

"a criminal defense attorney in possession of physical evidence incriminating his client may, after a reasonable time for examination, return it to its source if he can do so without hindering the apprehension, prosecution, conviction or punishment of another and without altering, destroying or concealing it or impairing its verity or availability in any pending or imminent investigation or proceeding. Otherwise, he must deliver it to the prosecution on his own motion." Id. at 123.

In addition to these constitutional concerns, the Stenhach :ourt made a very interesting practical observation. The court ;tared, "we are not aware of any case in any state in which an ittorney was convicted of a crime for conduct similar to that )f appellants." Id. at 124 (emphasis of the court). This obser- ratioti, compounded by the court's emphasis, makes it obvi- )us that the court thought that this was an improper use of the rampering statute.

T h e current statute, Article 37.09, Texas I'enal Code c lear ly does not make a requirement thal an attorne: inmediately lorn over evidence to prosecuting authorities Tlie few cases thal discuss the statute do not really discus: the factual situation before us. I n Spector e. Slate, 74( S.W.2d 945 (Tex.App.-Austin 1988, no pet'n), after ; stop and search, the defendant tore a marihuana cigarette it half and attempted to throw it away. Tlie contents an( remains of the cigarette were recovered and used to convic the defendantfor possession of marihuana. The court hek that this e v i d e k e of the attempted destruction of evidencf w a s le&lly insu f f i c i en t to show that the de fendan , d e s t r o y e d e v i d e n c e wi th in t h e meaning o f Sec t io r 3 7 . 0 9 ( a ) ( l ) . Cuadra 11. State, 7 1 5 S.W.2d 72: (Tex.App.-Houston [14th Dist.] 1986, pet 'n ref 'd) , involved the conviction of an officer in the Corps ol Cadets at Texas A & M for tampering with evidence. A written list of exercises was con~pletely destroyed after the police officer investigating reckless conduct asked for the list. The sufficiency of the evidence was not challenged. The court held that the conviction did not violate the cadel officer's fifth amendment privilege against self-incrimina- tion. In Dillard v. State, 640 S.W.2d 85 (Tex.App.-For1 Worth 1982, no pet'n), the defendant admitted to the grand jury that he told the sheriff's deputy that he did not have a stolen radio when in fact he did have possession of the radio. The court held that this statement, given to the grand jury and introduced at trial, was inadmissible and that the remaining evidence was insufficient to show that the defendant concealed evidence.

Clark v. State This situation here is the opposite of the facts in Clark

G t a l e , 261 S.W.2d 339 (Tex. Crim. App. 1953), tlie case

versation with his counsel that was overheard by the operator:

The appellant: 'Hello, Jimmy, I went to the extremes.'

h * . l r . The votce in Dallas: '\17hat did you do?'

The appellant: 'I just went to the extremes.'

The voice in Dallas: 'You got to tell me what you did before I can help.'

The appellant: 'Well, 1 killed her.'

The voice in Dallas: 'M'ho did you kill; the driver?'

The appellant: 'No, I killed her.'

The voice in Dallas: 'Did you get rid of the weapon?' - -

The appellant: 'No, I still sot the weapon.'

Tlte voice i n Dallas: 'Get lid of the weapon aral sit tight rind don't ~ l k to anywe, end I \\.ill fly down in the morning.'

toris testimony was admissible.

Contlusion The facts of the present case are exactly opposite. Here

coutisel specifically told his client to preserve the evidence. ~ounsel 'knew that the vehicle was evidence and he knew that his client would eventually have to surrender it to the police. As such, he did what the law required, he inade sure tliat its "verity" and "availability" was preserved.

The current statute, Article 37.09, Texas Penal Code, clearly does not make a requirement that an attorney immediately turn over evidence to prosecuting authorities. Here, counsel specifically told hislher client to preserve the evidence. As such, counsel in the abstract problem stated above did what the law required, making sure that the evidenceis "verity" and "availability" was preserved. Counsel would also ultimately have to turn over the evidence to the investigatinglprosecuting authorities within a reasonable time: Pragmatic consideration would indicate tliat the shorter the "reasonable time," the easier to explain the situation, both to investigators and the jury. If counsel surrenders evidence, the prosecution can not introduce that fact, unless counsel i s dumb enough to object on chain of custody grounds. *

Ron Goranson is a past president of TCDLA. He is also Board Certified in Criniirlal Law by the Texas Board of Legal Specialization. He practices in Dallas, Texas with Milner Lobe1 Goranson Sorrels Udashen & Wells.

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* Projected mailing d2te.

n the March 1996 issue of the

Voice for the Defense, I wrote

an article arguing that the doc-

trine of collateral estoppel bars

the State from relitigating an

issue decided adversely to it in an

administrative license suspension

By Robert N. Udashen hearing. As of this date, no Court

of Appeals has seen the wisdom

of my argument. Chief Justice Boyd of the Amarillo

Court of Appeals, in an appeal handled by Charles L.

Rittenberry, however, did dissent to the refusal of that

court to apply the doctrine of collateral estoppel in the

context of an administrative license suspension hearing. 'v ??

State v. Smiley, No. 07-96-0229 -CR (Tex. App. -

Amarillo March 31, 1997)(Boyd, C. J., dissenting).

Chief Justice Boyd's well-reasoned dissent is reprinted

below in its entirety.

NO. 07-96 0229-CR

IN THE COURT OF APPEALS

- - FOR THE SEVENTH DISIRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 31,1997

THE STATE OF TEXAS, APPEL- LANT

BONNIE VALENTINE SMILEY, APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF PO'ITER

COUNTY; ' NO. 69,871; HONORABLE

RICHARD DAMBOLD, JUDGE

Before BOYD, C.J., and QUINN and REAVIS, JJ.

The questiou presented by this appeal is wl~ether the doctrine of collateral estoppel precludes the State from relitigating an issue purportedly resolved against it in a prior license suspensiou hearing. The trial court held the doctrine applicable. Challenging that holding, the State has brought this appeal pursuant to Article 44.01(a)(5) of the Texas Code of Criminal Procedure. A majority of the court votes to reverse the judgment of the trial court and remand it to the trial court for further proceedings consis- tent with that decision.

The facts by which this questiou is presented are simple and, for the most part, not in dispute. In the early moin- ing hours of January 1, 1996, Officer Darryl Wertz of the Amarillo Police Department saw a car that appeared to have been in an accident. Appellee and two other women were standing nearby.

Altliough he was given conflicting stories, Wertz determined that appellee had been driving the vehicle. After another officer performed a series of field sobriety tests, appellee was ;~rrested for the offense of Driving

While Intoxicatedl and her co~npanions were arrested for Public Intoxication. The fact that the arrests were without warrants is undisputed.

Pursuant to Chapter 724 of the Texas Transportation Code (Vernon Pamph. 1997),2 Officer Wertz requested that appellee give a breath sample. She refused. Based on that refusal the State sought to suspend appellee's driver's license. See, Chapter 724, subcbapter C, Tex. Trans. Code Ann. (Vernon Pamph. 1997). Appellee requested a hearing on the suspeufion. Section 724.041. At a hearing held March 14, 1996, before an administrative law judge both the State and appellee were represented by counsel. Witnesses were sworn and gave testimony. In a written decision the administrative law judge denied the State's petition to suspend appellee's license. The judge also made findings of fact including the following:

"The Department did not prove, by a preponderance of the evidence that: there was probable cause to believe Defendant was intoxicated while driving in that although there was some indicators of possible intoxication, is., the smell of alcohol and glassyhloodshot eyes, there was con- tradictory evidence as to the results, if any, of any field sobriety tests."

There is no indication in the record that the State attempted to appeal this ruling as authorized by Section 724.047. The State subsequently sought to prosecute appellee for Driving While Intoxicated.

Alleging that her arrest was unlawful in that it was not pursuant to a warrant and there was no probable cause, appellee moved to suppress all evidence arising from her arrest. At the hearing on this motion, appellee argued that the ruling in the license suspension action estopped the State from relitigating the issue. After taking some testimony, including a description of evidence introduced in the license suspension hearing, the trial court agreed that collateral &td$pel barred the State from relitigating the issue of probable cause. The State brings this appeal advancing one point of error asserting that a facffinding in a license revocation proceeding cannot collaterally estop the litigation of that issue in a subsequent criminal proceeding.

The State advances four arguments in support of their challenge, that: (I) tlie doctrine of collateral estoppel in these circumstances is barred by statute and prior case law, (2) there was an insufficient record of the prior proceeding to determine if collateral estoppel applied to the suppression hearitig, (3) the issue at the suppression hearing was not the same issue decided by the administrative law judge, and (4) collateral estoppel can only apply \\.hen the prior judgment is one of acquittal.

Bec:~ose I believe the tri:ll caul-t did not err in applying the principle of coll:~tcral csloppcl, or issue preclusion, I

must dissent from the majority holding of tllis court. For the reasons stated herein, I am convinced that issue preclil- sion can, and i n this case did, arise fro111 an administrative license suspension hearing.

I agree with appel lee ' s posi t ion that Sect ion 724.048(a) does not preclude the application of collateral estoppel. Both the United States Supren~e Court and our Court of Criminal Appeals have defined collateral estoppel to mean "that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Ex parte Mathes, 830 S.W.2d 596, 598 (Tex.Crim.App. 1992). Nothing in that definition requires that the prior judgnlent be the result of a criminal proceeding. Indeed, in Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App. 1986), that court found the trial court elled in rejecting Tarver's collateral estoppel claim even though he had not been placed in jeopardy by the prior probation revocation proceeding. Id. at 197.

In Ashe, the Federal Supreme Court held that in the criminal law context, collateral estoppel is a right protected by the Fifth Amendment to the Federal Constitution.3 Thus, because the Fifth Amendment is applicable to the individual states, Benton v. Maryland, 395 U S . 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the protections afforded by that amendment, including collateral estoppel, are a matter of constitutional right. Ashe, 397 U.S. 445-46. To tlie degree that a statute is in conflict with the State or Federal Constitutions, the statute must yield.4 U.S. Const, art. VI, cl. 2; Marbury v. Madison, 5 US . (1 Cranch) 137, 180, 2 L.Ed. 60 (1803); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978). The constitutional infirmity of this statute has been noted before. See Arnold v. State, 920 S.W.2d 704, 708 (Tex.App.6 Houston [lst Dist.] 1996, pet. filed) (discussing predeces- sor statute Tex. Rev. Civ. Stat. Ann, art. 6687b-1, !3 5(d) (repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, $ 1, 24, 1995 Tex. Gen. Laws 1024, 1870-71)). I find the State's argument that issue preclusion is barred by statute unavailing.

While tlie State cites several cases as support for its position that liceuse revocation proceedings do not give rise to collateral estoppel, careful examination of the claims asserted i n those cases reveals them to be inapplicable. In examining those cases, it is important to note the distinction between the protections against double jeopardy, which bar multiple prosecutions or punishments for the same offense, Uuited States v. Halper, 490 U S . 435, 140, I09 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and the ~nuch narrower doctrine of collateral estoppel, or issue preclusion,5 precluding relitigation of specific facts that were actually resolved in a prior litigation. Ashe, 397 U.S. at 443.

V O I C E . V O L 2 6 110.5 J U N E 9 7

The distinction is significant because the standards by which double jeopardy claims are measured, the "same elements" test of Blockburger v. United States, 284 U S . 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), arc different from the standards applicable to issue preclusion, in which the preclusiort arises from the fact that an issue was actually litigated and decided in a prior proceeding. Because both the doctrines are embodied within the constitutional protection against being twice placed in jeopardy, Ladner v. State, 780 ~ . ~ 3 d 247, 250 (Tex.Crim.App. 1989), the distinction between double jeopardy and issue preclusion is a difficult oue which has led some parties, and even some courts, to use one term in place of the othel: See e.g. Nash, 817 S.W.2d at 839-40 (discussing trial court's reference to collateral estoppel in addressing a plea of double jeopardy), United States v. Miller, 797 F.2d 336, 341 (6th Cir. 1986) and Thompson v. Reivitz, 746 F.2d 397, 400 (7th Cir. 1984), cert. denied, 471 U S . 1103, 105 S.Ct. 2332, 85 L.Ed.2d 849 (1985) (both observing that the collateral estoppel claims were merely restatements of the double jeopardy contentions).6 Thus, in considering the applicability of previous cases, it is necessary to look to the claims actually asserted rather than the labels given those claims.

The importance of the distinction between double jeopardy and issue preclusion is well illustrated in Ex parte Tarver, supra. As noted above, that case involved an appeal from a denial of a pretrial writ of habeas corpus asserting both double jeopardy and collateral estoppel grounds. The appellant claimed that his prosecution for assault was barred by double jeopardy after a judge had found the evidence of the assault "totally incredible" at an attempted probation revocation based on the same assault. He also asserted that the court's finding invoked collateral estoppel by which the State was prevented from relitgating the fact of the assault. The Court of Criminal Appeals rejected the double jeop+y&im on the basis that the revocation proceeding had noi placed him in '3eopardy" for the assault. This was so, the court reasoned, because the punishment he might receive because of the probation revocation arose from the original offense, possession of cocaine, not the subsequent assault. Id. at 197.

In contrast, however, the court found the corollary doctrine of collateral estoppel barred the State from prosecuting the appellant for the assault because "the issue of whether appellant committed the particular assault alleged in the information has been found adversely to the State(in the probation revocation hearing), and the doctrine of collateral estoppel bars relitigating the issue ...." Id. at 200.

- - Parenthetically, the court also rejected the notion that res

judicata, and implicitly its subset issue preclusion, could not arise out of administrative proceedings. Id. at 199. In its discussion, the court cited United States v. Utah Construction and Mining Company, 384 US. 394, 421-22. 86 S.Ct. 1545, 16 L.Ed.2~1 642 (1966). for the proposition

that h e doctrine can apply when an administrative agency is "acting in a judicial capacity" and the parties have had en adequate opportunity to litigate. Tarver, 725 S.W.2d at 195. 1 have no difficulty finding that the license revocation hearing before an administrative judge who must, by statute, be an attorney, Tex. Govt. Code Ann. R 2003.041(b) (Vernon Paniph. 1997), and in which both parties are represented by counsel and have the opportunity to present evidence, satisfies that requirement. Cf. State v. Aguilar, 901 S.W.2d 740, 742 (Tex.App.-San Antonio 1995, pet. granted).

In Showery v. Samaniego, 814 E2d 200 (5th Cir. 1987), the Fifth Circuit suggested that the Court of Criminal Appeal's decision in Tarver extended the protections afforded by the doctrine of issue preclusion beyond that dictated by the Fifth Amendment. Assuming, without deciding, that the statement in Showery would extend beyond probation revocation proceedings and be applicable to the type of proceeding before us, it would not alter the effect of Tarver. It is within the prerogative of the Court of Criminal Appeals to find greater protections in the Texas Constitution than those afforded by its federal counterpart. Heitman v. State , 815 S.W.2d 681, 682 (Tex.Crirn.App.l991).7

Being convinced that issue preclusion can, in a proper circumstance, arise from an administrative license suspension proceeding, I believe we should review this record under the standards applicable to such claims. That review mandates two inquiries. First, what facts were necessarily determined in the first proceeding? Second, has the State sought to relitigate facts necessarily established against it in the first proceeding? Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App. 1981) (quoting from United States v. Mock, 604 E2d 341 (5th Cir. 1979)).

The State argues that the first requirement is not met because no record of the license suspension proceeding was before the trial court. Therefore, the State reasons, the court could not properly determine what issues were determined in the earlier proceeding. Both the United States Supreme Court and our Court of Criminal Appeals have held that the requirement of showing what issues were detem~ined in an earlier proceeding can be satisfied in one of two ways: by an express finding by the factfinder in the first proceeding stating the basis of its decision or, when the prior judgment is based on a general verdict, by "examin[ing] the record of the prior proceedings, taking into account the pleadings, evidence, charge, and other relevant natter . . ." in order to determine whether judgment in the former trial was based upon the same ultimate fact issues as those sought to be estopped in the subsequent proceeding. Ladner, 780 S.W.2d at 254 (quoting from Ashe, 397 U.S. at 444).

The first method is illustrated in both Ashe and Tarver. In Ashe, the jury elaborated on its not guilty verdict by

stating that i t was "due to insufficient evidence." 397 US. at 439. Thus, the court concluded the prosecutio~l was estopped from relitigating the issue of Ashe's involvement in a robbery. Id. at 447. In Tarvet; and in holding that issne preclusion applied, [lie court emphasized the judge's fact finding that the evidence produced at the revocation hearing was not credible. To I-emove any doubt as to the signif- icance of that fact the court stated:

"A mere overruling of a State's motion to revoke probation is not a fwt-finding that will act to bar subsequent prosecution for the same alleged offense .... It is only iu the particular circumstances of this case, where the trial court does make a specific finding of fact that the allegation is "not true," that a fact has been established so as to bar relitigation of that same fact."

Tarver, 725 S.W.2d at 200

Even so, unlike the general verdicts involved in Ladner, Nash, and Ex parte Lane, 806 S.W.2d 336, 339 (Tex.App.- Fort Worth 1991, no pet.), the judgment upon which appellee bases her argwnent includes an express finding by the judge of the absence of probable cause to believe appellee was operating a motor vehicle while intoxicated. Thus, I would hold that appellee has satisfied the first requirement to establish issue preclusion.

The second requirement for the application of issue preclusion is that the issue sought to be precluded is the same issue litigated i n the prior proceeding. In support of its position that the issue at the suppression hearing was not the same as that presented to the administrative law judge, the State cites and relies upon Neaves v. State, 767 S.W.2d 784 (Tex.Crini.App. 1989). However, that case is distinguishable. In Neaves, the appellant sought to preclude the State from establishing that he was driving while intoxicated based upon a finding in a license suspension action that there was no probable cause to believe h&cbinmitted the offense. The court rejected Neaves' argument and explained the diffeerence between the issues in the two proceedings in the following way: The question in the license suspension action was whether, at the time of the arrest, the officer had probable cause to believe Neaves was driving while intoxicated while the question at the DWI trial was whether the appellant was actually driving while intoxicated. Because evidence obtained after the arrest would be relevant to resolving the second issue, but not the first, the issues were different. Id. at 787.

Analyzed, the relevar~l issue in the license suspension heariug was whether Officer Wertz had probable cause to arrest appellee because of a reaso~iable belief she was operating a motor vehicle i n a public place wl~ile intoxicated at the time of her arrest. Section 724.042(1), (2). Likewise, the issue before rhc trial court at the suppression hearing \\,:IS whether Oll'icer Werlz had probable cause to

awest appellee at thc time he did so. The issues are so s im- lar that I find the second requirement to establish isstie preclusion was satisfied.8

In suppo~t of its proposition that issue preclusion cannot be predicated on the outcollie of a license suspension proceeding, the State cites two cases from other courts of appeal, Ex parte Ayers, 921 S.W.2d 438 (Tex.App.- Houston [Ist Dist.] 1996, no pet.), and Holinberg v. State, 931 S.W.2d 3 (Tex.App.-Houston [Ist Dist.] 1996, pet. filed). Both those are factually similar to the case before us. There is, however, a significant distinction in that the relief requested in each of those habeas corpus cases was dismissal of the prosecution against them rather than to preclude the litigation of specific facts. Although Ayers and Holmberg may have characterized their claims as involv- ing collateral estoppel, their arguments and the relief sought, as demonstrated by the courts' discussions, were appropriate to claims of double jeopardy. See also Miller, 797 E2d at 341.

For example, in Ayers, the appellate court found the trial court had not erred in denying the relief sought because "the State could potentially establish the appellant's guilt from evidence not derived from her arrest ...." 921 S.W.2d at 441. Implicit in that finding is the recognition that the State might have been estopped from relitigating the propriety of her arrest. In this case, of course, relitigation of the propriety of her arrest is exactly what appellee success- fully sought to prevent.

In Holmberg, the court recognized its previous decision in Ayers and pointed out that in a license revocation hearing, probable cause to arrest is an ultimate fact and one of the elements the State must prove to revoke a license. However, it noted, probable cause to arrest is not an element of the offense, it is merely evidential in nature and a finding of a lack of probable cause to amst , in itself, is not sufficient to give rise to a double jeopardy plea. Ayers, 931 S.W.2d at 5.

Citing the statement in Flores v. State, 906 S.W.2d 133, 141 (Tex.App.-San Antonio 1995, no pet.) that "[Tlhe doctrine of collateral estoppel is limited to situations in which the prior final judgment resulted in an acquittal; the State next argues that collateral estoppel can only arise from an acquittal; thus, because the decision of an adniinis- trative law judge is neither a conviction or acquittal, it cannot give rise to collateral estoppel.

However, the statement of the Flores court must be considered in the light of its statement i~umcdiately preceding that "[alpplication of the rule (issue prcclnsion) depends upon whether sonie issue necessary for the prosecutor's case i n tlie second trial 11;~s necessarily been found for the Aefendant in the first trial." Id. at 140. In this case, as I liave stated, the hearing before tlie administrative law judge ~nct all the requirelnents Tor a controverted judicial

36 V O I C E . V O L 2 6 110 5 J U N E 9 7

hearing and the question of the cxistcnce ol' probable cause \VBS ill1 ullini:~te issue necessary for tlie prosecution (tlie State) to obtain the relief sought, i.e.. suspension of the driver's license. Tlius, tlie rcquirenient actually stated by the Flores court for imposition of issue preclusion was met here.

Moreover, in each of the authorities cited in Flores in support of the general statement tliat an acquittal is necessary for invo&tion of issue preclusion, the courts were considethg convictions in the lower courts. For exaniple, in Simien, the court noted:

"Federally, Ashe has been construed to recognize a distinction between an acquittal (under circumsta~ices where the presence or absence of the accused at the scene of the crime is resolved in his favor) and a conviction in the prior trial of one accused of crimes occurring at the same time. Under this construction, the doctrine of collateral estoppel does not apply if the first trial resulted in a conviction."

Simien v. State, 514 S.W.2d 452, 454 (Tex.Crim.App. 1974). It is in this light that the general statements that issue preclusion would not arise from an acquittal were made. I do not agree that either Flores or the cases cited by it support a conclusion that issue preclusion would not be applicable in a case such as this one.

The State finally argues that a ruling on a motion to suppress is merely a type of evidentiary ruling and "[nlo case has been found wherein the doctrine of collateral estoppel has been utilized to determine the admissibility of evidence." Suffice it to say, I disagree. Under the autliorities I have cited, collateral estoppel prevents the relitigation of facts previously detemined. By definition; then, it must be utilized to determine the admissibility of evidence. See also, Wingate v. Wainwright, 464 F.2d 209, 215 (5th Cil:

872 F.2d 240, 242 428 ~ . 2 d 654,

667 (9th Cir. 1970); United States v. Levassaeur, 699 ESupp. 965, 980-81 (D.Mass. 1988); People v. Page, 614 N.E.2d 1160, 1168-72 (111.1993); Miller v. State, 545 So.2d 343, 344 (Fla.Dist.Ct.App. 1989); State v. Moulton, 481 A.2d 155, 161-62 (Me.1984), affirmed, 474 U.S. 159, 106 S.Ct. 477, 8B L.Ed.2d 481 (1985).

At oral atgunlent, the State suggested that affirmance of the trial court's holding might require the application of issue preclusion in favor of the State when it has prevailed in an administrative hearing. With regard to establishing the elemerits of the offense at a trial on the merits, courts uniformly_lio_ld that issue preclusion cannot lessen the State's burden. United States v. Dixon, 509 U S . 688, 710 fn.15, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Aslie, 397 U.S. at 464-65 (Burgcr, dissenting) ("courts that have t~pplietl tlie collateral-estoppel concept to criminal actions would certainly not apply i t to both parties, as is true in civil cases").

Altliougli sevei.al federi~l cases have applied issue preclusion against csimint~l defendants that had lost motions to suppress, Iloscnbcrger, Thoresen. Levassaeur, i f the State had prevailed in the license suspension proceeding it could not have precluded appellee from relitgating the suppression issue in a subsequent criminal proceeding. This is so because Fifth Amendment protections, and necessarily their state constitution counterparts. do not operate in favor of the State. Knapp v. Cardwell, 667 F.2d 1253, 1268 fn.5 (9th Cir. 1982) (Adam, concurring in part and dissenting in part), cert. denied, 459 US. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). Without those constitutional irnplica- tions, Section 724.048(a) of the Transportation Code would be effecdve to prevent the State from asserting issue preclusion.

Addidonal cases touching on this issue merit a brief discussion.9 In Ex parte Poplin, 933 S.W.2d 239 (Tex.App.6Dallas 1996, no pet. 11.); State v. kabson, 899 S.W.2d 741 (Tex.App.- Dallas 1995, pet. granted); and Walton v. State, 831 S.W.2d 488. 490 (Tex.App. Houston [14th Dist.] 1992, no pet.), the courts held or at least discussed the proposition that collateral estoppel cannot arise from license suspension proceedings. Each one of these opinions rely upon Burrows v. Texas Dept, of Public Safety, 740 S.W.2d 19, 21 (Tex.App.-Dallas 1987, no pet.) for tliat proposition. Burro\vs, in turn, relies upon Davenport v. State, 574 S.W.2d 73 (Tex.Crim.App. 1978), in which the court held that res judicata cannot arise from a probation revocation proceeding because revocation proceedings are essentially "administrative in nature." Davenport, 574 S.W.2d at 76.

In Tarver, the court noted this liolding in Davenport, but also noted the Supreme Court decision in United States v. Utah Construction and Mining Company, 384 U S , at 421- 22, to the contrary, and expressly overrule^-that portion of Davenport. In doing so, the Tarver court cornrnented:

"To the extent tliat a probation revocation hearing involves a trial court acting as finder of fact, after a full !hearing on an issue at which both tlie State and an accused are represented by counsel, the court is certainly "acting in I judicial capacity."

With regard to the question whether collateral estoppel :an, in the proper circumstances, arise from a license sus- lension, the court's opinion in State v. Groves, 837 S.W.2d 103 (Tex.Crim.App. 1992) is instructive. That case also nvolved the applicadon of collateral estoppel to prevent elitigation of probable cause detennined adversely to the State in a license revocadon preceding. In addressing col- ateral estoppel, the court discussed the general rules ipplicablc to the doctrine and held that because there is lathing ill the record to indicate that tlie finding specifical- y related to tlie presence or ahsence of probable cause to

arrest appellee, the doctrine was not applicable. By that discussion and holding the court implicitly, if not explicit- ly, recognized collateral estoppel could arise from a license suspension hearing under circumstances such as we have

I

before us.

For the reasons which I have discussed, I would affinn the judgment of the trial court.

John T. B~yd, Chief lustice Publish.

1. See, Tex. Penal Code Ann. 49.04 (Vernon 1994 & Supp. 1997).

2. All section nun~bers herein are to the Texas Transportation Code Ann. (Vernon Pamph. 1997), unless otherwise stated.

3. The Coult of Criminal Appeals has held that Article I, R 14 of the Texas Constitution provides the same protections as the Fifth Amendment, Zirntnerru- v. State, 750 S.W.2d 194,209 (Tex.Crim.App. 1988).

4. This case does not involve the exception for those rare, if not extinct, statutes extant at the time of the admis-

District 4 ( l i ho r l . Ytroppf Holmer

Odir Hill Barney Sawyer

Jeonelfe Kinord Randy Leovilt

Ben Florey Slanley Sthweiger

sion of Texas to the union. League v. De Young, 52 U.S.(Il How.) 185,203, 13 LEd. 657 (1850).

5. Finding the term issue preclusion more descriptive of the doctrine at issue, I use it in this opinion. It is important to note that use of the term issue preclusion does not imply any distinction from the cases using the term collateral estoppel.

6. Our recent decision in Ex parte Pipkin, 935 S.W.2d 213 (Tex.App.-Amarillo 1996, pet. requested), also illus- trates this occasional confusion by litigants. In that case, an appellant sought a writ of habeas corpus asserting the State was "collaterally estopped" from trying him for DWI after he prevailed at a license suspension hearing. Because the appellant sought to bar his prosecution rather than merely bar the relitigation of specific facts, his claim was one of double jeopardy, and was resolved with reference to cases discussing that doctrine. Because of that distinction, our holding in Pipkio is inapplicable here.

7. Moreover, if Tarver is based on Article I, Section 14 of the Texas Constitution, any tension between the holding in Tarver and Ex parte Robinson, 641 S.W.2d 552 (Tex.Crirn.App. 1982)? would be resolved because in Robiuson, the court expressly held that he had waived any colnplaints based on Article I, Section 14. 641 S.W.2d at 553, fn. I.

3. There is at least one conceivable situation in which the issue at a subsequent suppression hearing could be different from that before the administrative law judge. Because the issue on which the administradve law judge's ruling was based was probable cause to believe appellee was "intoxicated while driving," the State would not be precluded from showing the arrest was valid based on probable cause to believe she had committed another offense. However, there is nothing in this record showing that, at the time of the arrest, Officer Wertz arrested appellee for any offense other than driving while intoxicated. That being true, that question is not before us.

. Apparently recognizing the suspect authority of these cases, the State has not relied upon them in support of its argument.

10. Another case that relied on Davenport was Showery v. State, 704 S.W.2d 153 (Tex.App.-El Paso 1986, pet. ref'd). In addition to its reliance on Davenport, Showery distinguished the First District Court of Appeals opiuion in Ex parte Tarver, 695 S.W.2d 344 (Tex.App.-Houston [Ist Dist.] 1985), affrmed, 725 S.W.2d 195 (Tex.Crim.App.l986), as only "an effort to persuade the Coult of Criminal Appeals to change its position ...." As is apparent from the Court of Criminal Appeals' disposition of Tarver, that effort was successful, leaving little support for Showery. *

38 V O I C E . V O L . 2 6 N 0 . 5 J U N E 9 7

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