10 DECEMBER 2001 - Voice For The Defense Online

10 DECEMBER 2001 

FENSE 

-

.JANUARY 24 & 25, 2002, LONGVIEW, TEXAS 

PURPOSEANDSCOPE 

DEVELOPING THE THEORY OF THE CASE. A 

2-day seminar presented by the Criminal Defense Lawyers 

Project This seminar uses a navel approach to address a 

common challenge for most attorneys. With interactive presentations, 

focused studies, and a comprehensive manual, 

attorneys will learn how to develop the theory of four common 

criminal cases.ThehYo-dayseminar includes education 

an druo cases. child abuse cases. cases with witness identilicat~on 

issues, an0 cases w m sell.defe~nse ~ss~cs. Tne seminar 

is offer in lo~r ocat ons across Tuxas El Paso. May2-3. 

2002- Corpus Christi. Ju y 11-12.2002 

COURSEDIRECTORS: 

ERIC ALBRITTON AND CRAIG JETT 

u &~rrent or New hlwnbcr 

CI No~t-Alember 

0 ktrly registralion endsJam~ilry 18tI1, dter that date, please add 

CmY Attend 

Buy the Book 

0 Chcck enclosed (Xnke l'oyb/@ to CDLP 

o Charge my o \%a dhnerican Express 

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pur ned \$tether )au7~ 

Your Total 

O I an1 :lppl in f o n ~ schol~rslup by :UI:I~ 8th. To :I p l sentl ~ a leller indicating: 

receivedii scl~ohixliip d r e iind \v~ten as we^^ as two 

ettels of reconin~enda~ion, one fro111 a judge and one fro111 n member of TCDW. 

0 I'lease check here or call h e oIfice if you require special assistance 

We \\ill be happy lo help )at1 in ;utyway \w can. 

FOR IVEIVA~E~MBERS ONLY 

iWr~rirmtirrg E~~dorse~rte~tf 

A a carrent member of TCDW 1 l~eliere Illis applicant to be a pelxon of professio~~al 

compe~encj: inlegrit): and goad notd chnncter The applicant is licensed to laclice law 

in Texas nod is engaged in the defense of criniinal cases, unless n student or nkliatc q~plicant. 

Signature of Member 

Xember's Name 

Pieme crdlltr~r~~p nf 512/478-2514 or check out ottr 

lk4 site - rurutu.tcllln.cor# fur ifrforfr~fltio~rl 

DESTINATION INFORMATION 

The seminar is being held atthe Homewood Suites located at 

205 Spur 63, Longview, Texas 75601. Commercial air service 

at Gregg County Airport is provided by American Eagle 

Airlines. We have rooms blocked at a rate of $75 per night. 

You will need to make a reservation by January 15th in order 

to guarantee this room rate and availability Call the 

Homewood Suites at 903-234.0214 and be sure to mention the 

Criminal Defense Lawyers Project when making your room 

reservation to receive our group rate. 

AIRLINE INFORMATION 

Southwest Airlines is offering a 10% discount on most of its 

already low fares for travel to and from Dallas! Love Field for 

the Texas Criminal Defense Lawyers Association Meeting. 

You or your travel agent may call the Southwest Airlines 

Group and Meetings Reservations desk at 1-800-433-5368 

and refer to ID CODE R8665. Reservations Sales Agents are 

available 8:00 a.m. - 5:00 p.m., Monday - Friday, or 9:30 a.m. 

- 3:30 p.m.. Saturday and Sunday. You must make reservations 

five or more days prior to travel to take advantage of 

this offer. 

SCHOLARSHIP REQUESTS 

There 

~~~~~ 

are a limited 

~~~ 

number 

~~~ 

ofscholarshios available tothose 

deserving ahurne)s act ie.) cnqagcd illille defense of crllllnal 

cases Scoo arsh p requests lnusttlc nwrillllg an0 slate 

thatthe applicant is a member ofthe State Bar of Texas, the 

length of time helshe lhas been practicing as a criminal 

defense lawyer, and whether helshe has ever received a 

scholarship from CDLP,TCDLEI, or the Friends ofTCDLA. The 

reouestshould be accomoanied bvlwo letters of recammendation; 

one from the Texas or federal judiciary, the other front 

a TCDLAmember. 

APPLICATIONS ARE DUE by JANUARY 8th. 

CLE INFORMATION 

An application for accreditation of this activity has been submitted 

to the MCLE conlmitlee of the State Bar of Texas and 

is pending. It is expected that the State Bar of Texas for will 

accredit this program up to 12.25 hours of Continuing Legal 

Education credit including 1.5 hours of ethics. Credit for 

attendance mav be utilized toward the CLE reouirements for 

the cen'f CJI'OII and recm I c~I!u!! UI attorneys n crn~ 

oa 

aw b/ tile Texas Ruard ol .ewl Seec a.za:on anu tondrds 

the toiat CLE requirements of ;he &ate Bar of Texas.

COLUMNS 

President's Message 

THE PURPOSES 

OF TCDLA 

The purposesforwhich the corporation 

is organized are: To protect and 

ensure by rule of law those individual 

rights guaranteed by the Texas and 

Federal Constitutions in criminal 

cases; to resist the constant efforts 

which are now being made to curtail 

such rights; to encourage cooperation 

between lawyers engaged in the 

furtherance of such objectives 

through educational programs and 

other assistance; and through such 

cooperation, education and 

assistance to promote justice 

and the common good. 

Executive Director's Perspective 

Federal Corner 

Capitol Corner 

The Corner Office 

From the Four Corners of Texas 

Editor's Comment 

Announcements 

Membership Benefits 

DEPARTMENTS 

New Members 

Motion of the Month 

Schedule of Events 

Significant Decisions Report 

FEATURE STORIES 

20 A Judicial Perspective on Sentencing Issues 

Bj'Rnrz@ Schnffer 

26 How to Effectively Use a Mental Health Expert 

Rg Pnrrl Horns

200 1-2002 OFFICERS 

President Betty Blackwell, Austin 

President-Elecl Mark G. Daniel, Fort Worth 

1 st Vice President Cynthia Huiar Orr, San Antonio 

2nd Vice President Daniel Hurley, Lubbock 

Treasurer Randy Wilson, Abilene 

Secretary Stuart Kinard, Austin 

Editor Voice for the Defense John Carroll, San Antonio 

Editor Signlficanl Decisions Report Cynthia Hampton, Austin 

Immediate Pasl President Bob Hinlon, Dallas 

STATEMENT 

Wce for theDefertse (ISSY 0364-2232) is 

published monthly, except for 

JanuaqRebrua~y and JulylA~~gust, which 

are bimonthly, by the Texas Criminal 

Defense Lawyers i\ssociation Inc., 600 \Vest 

13fh Street, ,\ustin, Texas 78701. Prh~ted in 

the USA. Basic subscription rate: $40 per 

year when received as a benefit of TCDIA 

n~embership. Nan-n~en~ber snbscriptions: 

$75 a~nndy Periodicals Postage P;lid at 

Austin, Texas. 

POSTMASTER 

Send address cl~anges to I'oice for the 

Defense, 600 West 13Ih Street, Austin, 

Texas 78701. I'oice for the Defeme is published 

to educate, trxjn and support allorne).s 

ill the practice of crinlinal defense law. 

CONTRIBUTORS 

Send aU feature articles to Greg Wes'111, 

Wesiid, P~~~&CIIIIPI; OneSumn~it Ave., Suite 

910, Fo11 Wo~ll~, TX 76102, 8171877-1700. 

Please send aU other n~aterials for publicsti011 

lo John CarroU, Ill West Oln~osDri\~e, 

San Antonio, Texas 78212. 210/829-7183 

or to, I'oicefor IheDef~~m, 600 West 13th 

Street, ,\ustin, TX 78701, 5121478-2514, 

Fax 5121469-9107, e-mailmaterials call be 

sent to nmv.tcdla.con~. 

Stnteme~~ts and ophuons pnblished in the 

IWce for the Defense are ll~ose of the 

author md do not necessarily represent the 

posilio~~ of TCDM. No n~aterial any be 

reprinted without prior approvd and proper 

credit to the magazine. 02001 Texas 

Criminal Defense Law~ers Association. 

DIRECTORS 

ERlC M. ALBRIlTON, Longview 

G. PATRICK BLACK, Tyler 

WES BALL, Arlington 

DANNY EASTERLING, Houston 

UNCE EVANS, Fort Worth 

ALBERTO GARCIA, Austin 

MlKE R. GIBSON, El POSO 

DEXTER GILFORD, Austin 

DAVID GUINN, Lubbock 

RONALD P. GUYER, San Antonio 

WILLIAM s. HARRIS, Fort Worth 

cywsnln HENLEY, Houston 

RODERIQUE HOBSON, JR., Lubbock 

cmls noovsr, Plano 

W.H. "BENNIE" HOUSE, JR., Houston 

JEFF KEARNEY, Dallas 

J. CRAIG JElT, DO~~OS 

.MARTIN LENOIR, DO~S 

ROBERT LERMA, Brownsville 

ASSOCIATE DIRECTORS 

HENRY BEMPORAD, San Antonio 

WILLIAM CARTER, Madisonville 

MIKE CHARLTON, Houston 

BRIAN CHAVEZ, Odessa 

KNOX CITZPATRICK, Dallas 

DIANNA HOERMANN, Sun Antonio 

TCDLA STRIKE FORCE 

DANIEL W. HURLEY, CHAIRMAN 

DISTRICT ONE 

BILL WISCHKAEMPER 

RON SPRIGGS 

ROD HOBSON 

DAVID GUINN 

DISTRICT TWO 

MICHAEL R. GIBSON 

JIM DARNELL 

WOODY LEAVRIT 

TOM MORGAN 

DISTRICT THREE 

MARK DANlEl 

J CRAIG JEn 

JEFF KEARNEY 

RANDY WILSON 

GEORGE MILNER Ill 

BOB HINTON 

DISTRICT FOUR 

SCRAPPY HOMES 

ERlC ALBRITON 

BARNEY SAWYER 

n.w. rlwoo~~ml 

LEVERETI, JR., Midland 

JESSE MENDEZ, Lubbock 

GEORGE MILNER, Ill, Dallas 

TYRONE MONCRIFFE, Housfon 

WALTER "SKIP" REAVES, West 

RICHARD RODRIGUEZ, Harlingen 

KATHERINE SCARDINO, Houston 

GEORGE SCHARMEN, San Antonio 

STANLEY SCHNEIDER, Houston 

RICHARD SEGURA, JR., Austin 

RONALD SPRIGGS, Amarillo 

MARY STILLINGER, El Paso 

J. GARY TRICHTER, Houston 

MANDY WELCH, Houston 

GREG WESTFALL, Fort Wor~h 

DON WILSON, Abilene 

pnn WISCHKAEMPER, Lubbock 

LARRY MOORE, Fort Worth 

ANDY NOGUERAS, McAllen 

VERSEL RUSH, Wichita Falls 

GRANT SCHEINER, Houston 

JOE SPENCER, El Paso 

JOHN YOUNG, SweeiW0ter 

DISTRICT FIVE 

KATHERINE SCARDINO 

DAVID CUNNINGHAM 

MlKE CHARLTON 

STANLEY SCHNEIDER 

NRONE MONCRIFFE 

MARJORIE MYERS 

GARY TRICHTER 

DISTRICT SIX 

SHELDON WEISFELD 

BOBBY LERMA 

KYLE WELCH 

DOUG TINKER 

DISTRICT SEVEN 

FRANK SUHR 

CYNTHIA ORR 

GEORGE SCHARMEN 

JOHN CONVERY 

RUSTY GUYER 

DISTRICT EIGHT 

CAROLYN DENARO 

RANDY LEAVITT 

GERRY MORRIS 

BILL ALLISON 

DAVID BOTSFORD 

JOE CANNON 

JIM BROOKSHIRE

L 

COMMllTEE CHAIRS AND CO-CHAIRS 

AMICUS 

-- 

CURht 

1 Ricknagen 

' 

CONTINUING LEGAL EDUCATION 

Tim Evans 

Gerry Morris 

INNOCENCE COMMIiTEE 

Cynthia Hujar Orr 

DEATH PENALTY COMMITTEE 

: Chair: Cynthia Hujar Orr 

Director: Phil Wischkaemper 

HALL OF FAME 

Clifton "Scrappy" Holmes 

LAWYERS ASSiSTANCE 

Dan Hurley 

LEGISLATIVE 

Keith Hampton 

Subcommittee: Indigent Representation liaison w1State Bar of Texas: 

Catherine Greene Burnett (713) 646-1831 (713) 646-1766 fa 

MEMBERSHIP 

Bennie House (713) 688-3398 (713) 680-0804 fa 

Lydia Clay-Jackson (409) 760-2889 (409) 756-0901 fa 

Versel Rush (940) 767-7567 (940) 723-9972 fa 

Sheldon Weisfield (956) 546-2727 (956) 544-7446 fa 

Charlie Butts (210) 226-1692 (210) 226-2297 fa 

SECOND CHAIR COMMinEE 

Carolyn Denero (512) 472-1353 (512) 472-1316 fa 

RURAL AND SMALL TOWN 

John R. Smith 

NOMINATING 

Mark Daniel 

PAROLE AND SENTENCING 

Gary Cohen 

Bill Habern 

David O'Neil 

I 

Robert Hinton 

Oallas 12WO-2001) 

Michael P. Heiskell 

Folt Worth 11999-2000) 

Kent Alan Schaffer 

Houston 11998-19991 

E.G. "Gerry" Morris 

Austin 11997-1998) 

David L. Botsford 

Austin 11996-19971 

Bill Wischkaemper 

Lubbock (1995-19981 

Ronold L. Goranson 

Dallas 1199.-1995) 

David R. Bires 

Houston 1199349941 

Gerald H. Goldstein 

San Antonio 11992-1993) 

Richard Alan 

Anderson 

Oallas 11991-1992) 

Tim Evans 

Forth Worth (1990-1991) 

Judge J.A. "Jim" 

Bob0 

Odessa (1989-19901 

Edward A. Mallew 

Houston (1968-1989) 

Charles D. Buns 

San Antonio (1987-1988) 

Knox Jones' 

McAllen (1986-1987) 

John Carroll 

111 Nest Olmos Drive 

San Antonio, Texas 7621 2 

FEATURE ARTICLES EDITOR 

Greg Westfall 

Westfall, Platt & Cutrer 

One Summit Ave., Suite 910 

Fort Wollh, TX 76102 

(617) 677-1700 

PRODUCTION ASSlSTM 

Susan Vela Rice 

TCDLAlHome Office 

(512) 478-2514 

Louis Dugas, Jr. 

Orange 11985-19861 

Cliffon L. "S#rappyn 

Holmes 

Longview (1984-1985) 

Thomas Gilbert Sharpe, Jr. 

Brownsville (1383-19841 

Clifford W. Bwwn 

Lubbock (1982.1983) 

Charles M. McDonald 

Wac0 (1981-1982) 

Judge Robert D. Jones 

Austin (1980-I9811 

Vincent Walker Perini 

Dallas(1979-19801 

George F. Luquewe' 

Houston (1978-1979) 

Emmeti Colvin* 

Fairfield,VA (1977-1978) 

Weldon Holcomb 

Tyler (1976.19771 

C. Davld Evans' 

San Antonio (1975-19761 

George E. GllEerson 

Lubbock (1974-1975) 

Phil Burleson* 

Dallas (1973-19741 

C. Anthony Frlloux, Jr.' 

Houston (1972.1973) 

Hon. Frank Maloney 

Austin (1971-1972) 

-- 

PAINTINO 

MPRESS, INC. 

(512) 389-0140 

ASSISTANT FEATURE 

ARTICLES EDITORS 

Cynthia H. Orr 

Goldstein, Goldstein & Hilley 

2900 Tower Life Bldg. 

San Antonio. Texas 78205 

(210) 226-1463 

W. Regan Wynn 

120 W. 3rd, Ste. 300 

Fort Worth, Texas 761 02 

(81 7) 336-5600 

IMPORTANT TAX NOTICE 

DUES/TAX NOTICE PLEASE NOTE THE FOLLOWING: GENERAL COUNSEL CAPITAL ASSISTANCE ATTORNEY 

Kdic M. Bdlq (kbdq@tcdh.cont) Phit\Rschhemper (p\~isch@tcdlr.can~) 

$36 of pur znnuai dues($l9 ilr Srudent Menthcr) is for a one yc.u subscription lo the 

I'oicefor thoUefome. and $39 ollhc rcgutrr dues is for TCDU legislstiw progmls. 

Dues lo TUNA me no1 deductible ;ls a chrrirable conttihi~lion but mny be deducted as an 

ordinar]. busbr~ss espense. 

Because afTCDUs llcglslalire pro nm $39 ofstisleining nnd regular ntembership due 

is not d&clible as a b~shes expense. 

ADMINlSlRAlIVE ASSISTANT 

Susan \ktr-Rice (s\rtrrice@tcdt~.com)

Be& Bhckuell 

PRESIDENT'S 1 

MESSAGE 

WHY A LAWYER'S WORD 

MUST MEAN SOMETHING 

011 a daily basis criminal defeme lauye~s 

face judges and prosecutols who pepper them with questio~a. 

Because they cao sot cross-esm~line the client, they feel it is their ~Sghto grill the Ia\\yer. 

"Where is your client \%y is yoor client late to coortl" If the lauyer is not fortl~comi~~g 

truthfill, 

the judge or prosecutorufl find out. Nest, rrunlors about the attormy fly tbrougl~ the courthouse. No matter 

how large or urban your cou~~ty is, the gossip maclune at the local coo~honse is pouwful. This is a furdamcntal 

ditference betn7een the pmctice of civil a ~ criminal ~ d law. Civil Iau~ers are able to shade the truth, 

explore alternative mditles, and flat-out lie ufitl~out 

conling back to haunt tl~em the sanleway it does a trimikal 

lauyer. TeU one judge that you are sick on Friday a ~ can't d appear in coort, and \vatch the sparks fly 

whe~~ you are seen at Le local football gan~e the same nigbt. CrW~al defense lauyers must [leal with the 

same judges a ~ same d prosecutors day dter dax n~onth after monlh, year after year. 

1 have explained to many a II~W 

prosecutor that my reputation is llot worth one single client. If I tell a 

prosecutor that I udl produce evidence that my client has completed alcohoVd~~~g counselit~g, then I better 

produce it. If 1 tell them that my client has not been arrested before, then I better be right. B lauyer handling 

crin~inal cases y~~ickly loses the ability to help heir clients if s~~spicio~~ esists as to that lauyer's truthfulness. 

It is ullat n~akes us special. 

Tsuth is essential outside of the cornthouse as dl. Often I IIIIIS~ look grou7n men and WON~II in the eye 

md tell then thc! they must stop drinking because they haw had too many D.W.1.s. \Ste discuss ail the healthy 

bellefits of absti~me~~ce, including losing weight and lowing cholesterol levels. I talk to teenagers about marijna~a. 

1 espl;cin that as a prohct of the sixties, I thought marij~m~ta wo~ould be legd by nou: but it is not. If 

pu are goit~g to smoke nlarijuana, then eVeq time an officer passes you by, and sn~eUs tlm special SIIWU, 

).ou udl be searched, dchined, a ~ lmn~iliated. d I tell tl~em that accordi~~g to other teenagers, "marijuana 

makes you stupitl" io school and if tl~eywanto get allead they need an education, 

hlany parents l~ave told me how nmch they appreciate my talk to their clffldre~~. For III:~~ reasons kids 

wo~on't listen to parents. But sit then1 dow across fron~ a criminal defense la\yer urho explains the potential 

for jail tin~e and sometimes their attention spa11 lengthens. 

Other times it is the parent and not the child that seeds a dose of the t111111. I carefefidly explain to husbands 

md theisutves, and to \rives and their husba~~ds - depending on who did wl~ato whoa - thnt there is more 

to anger i~~anagement than a phoue call to the police. In tl~e simplest terms, "Love is not calling 911." 

Tl~rongh it all, we ~mst be trutllfi~l and honest. \Ve m d for our clients to listell to us, m~d to believe that 

\e speak bom our hea~s. We need pmsec~~to~s :mci j~ldges to believe that we are sincere in our efforts to 

help our clients. All of tlus is great practice for co~~vi~~cillg juries that we meal what we say and say wl~at ute 

mean 

TIIIIII. It is the rmon I believe that crimh~al defense lanyers are the most professional and most civil of 

all atton~e)~. The crinhlal defel~se bar helps each other, w e encou~xge each othel; and most of all we trust 

each otilec 

God bless the cri~~linal defeuse lauyel: SQe/he is the only thing standing behveen us and a police state. 

Happy tlolidxys. 

6 VOICE FOR WE DEFENSE IYWW.TCOLA.COM DECEMBER 2001

I 

MESSAGE FROM THE 

EXECUTIVE DIRECTOR 

wo~~ld like to thank the Board of TCDM for their vote of support. I an honored to be the fourth 

Execi~ti\~e Director in 30 years of TCDM semice to tbe education of criminal defense lanyers 

it1 Texas. 

By way of introduction, I have a Master's in Business Admit~istration froin the University of 

Tesas at tiltstin and Masters Degree in Psychology from St. May's Uni~rersity I was past Executive 

Director of the Malor Education Fom~datio~i ald Senior Vice President for Public Policy witb 

United Way of Texas. 1 have professiond work experience in nle11tld health, substance abuse treatment 

services and i~~venile correctio~a. 1 have been a registered lobbyist in Tesas and have 19 

years of experience witb state legislators. 

I a~rreatly serve on several non-profit boards iu the Austi~l c011111iusity. ihly wife Bertha m~d I 

I~we been married for 21 years. \Ve have four grow^^ adult cbildretl and one gral~dsot~ Julian. 

I believe that my rights under both the Tesas and Federal co~~stitotio~~ call o~~ly be secc~red 

tbrougl~ my ensuring tbat others rights are protected. I believe TCDLA is tbe premier association 

in the state that enti protect and enswe by rule of iaw these oneq~~ili\.ocal rigbls. I pledge to serve 

the Board of TCDLA, ~nernbers and staff I welcome input and encourage critique. 

I believe the orgaukation has tremei~doos ;Issets: first, the qdty ad caliber of our board 

men~bcrs; second, the professio~~alis~n and dedication of our staff; and hdy the strengtl~ and 

support of our 2,300 members. I believe TCDJA bas e~cellent products such ss the I'oicefortbe 

Defei~se, continuing education seminars, and educatiot~al materials and our web site. I believe 

we must focus on quality products and selvice to our meu~bns. I believe we must focu on providu~lr! 

- valt~e to our ~nembers. 

I believe the Association faces three challenges iu the i~pcomni~~g year. The first challenge is the 

espa~~siou . of the CDLP grant - from the Court of Criminal Appeals. . Five new positions will be added 

this grant cycle. \Ve \will be provicliu~g contin~~ing ed~~catio~~ opportunities for 700 additio~~al 

lawyers. The second chde~~ge is that the home oflice will mor7e as we both sell and purchase a 

new office. The third challenge is our need to work together sharisg our stre~~gtbs and helping 

each other witb areas of growtb. Together we will plau for tbe future of the associatiot~. Together 

we will have an ia~pact on tbe education of cri~ninal defense lawyers in Texas as well as promote 

justice and the COIUIIIOII good. I look fonvard to meeting eacb a ~~d e\wy tnember and sewit~g 

then1 in accortla~~ce wit11 our gods. 

EXECTUTIVE 

DIRECTOR'S 

VOICE FOR THE DEFENSE WWW.tCDLA.COM DECEMBER 1001 7

lR. "Blcck" Pilaf, 3: 

FEDERAL 

CORNER 

AND THE WINNER OF ROUND 

TWO IS.. .DICTA 

B 

y now; most crinlii~al ilawps who spend my time iu the United States m ~ds 

En~efsan and his concerns with the co~~stitutionalitg 

are vety familiar nsitl~ DL 

of 18 U.S.C. § 922(g) (8). I first wrote about the 

good doctor in the May, 1999, issue of the IWce ("And Cimarlton IIeston said, 'I told yo11 so."'). At the 

Advanced Crimid hw Co~~rses of the State Ba of k s in 1999, 2000 and 2001, it was nqr position that 

United States District Judge Sam R. Cummings' dislnissal of En~crson's indictment would e\re~tuaUy be reviewed 

by the U~uted States Supreme Court. 

Emerson, you will recall, was the doctor who was prosecuted for "...possessitlg a firearm in or affecting 

interstate conmarce.. .when he was subject to a CDIIIT order wl~ich.. .restrained 11in1 from harassing, stalking, 

or threatening an intimate pwtner or such person ... or engaging in other contluct that would place an intimnte 

partner in rmonable fear of bodily inju~y..." Emerson's lawyer filed a motion to q11ash the indictment 

suggesting that 18 U.S.C. $ 922(g) (S), under which the prosecution was brought, was 81 unconstitutional 

exercise of congressional power 1111der the Commerce Clause and the Second, Fifth, and Tenth An~endnlcnts 

m tl~e United States Constitution. Judge C~mn~nungs found no basis for tlte Colimme Chuse or Tenth 

Amendnmt arguments but gwnted relief on the Second and Rfth An~endmcnt arguments. 

After holding the me 

for almost 30 months, a panel of the Circuit [Gruwoorl, DeMoss, and Parker (specially 

ccar~curri~~g)l handed down its opinion reversing the judgmw~t of the trial court. United Stntes u. 

i,~erson, - E3d -, 2001 \VL 1230757 (5th Cir. 2001). On WestIaw, the opinion is 57 pages in length 

and IS divided into fiw sections: 

Section One: Construction of 18 U.S.C. 922 (g)(8) 

Section %YO: Doe Process Clause of the E1ft11 Amendment 

Section Three: Con~mcrce Clause 

Section Poor: Tent11 An~endment 

Section Five: Second h~endme~~t. 

\Vhen Judge Culnmings dismissed the indictment the media cove~xge focused on Emerso~l a Second 

hend~ellt case - md rightly so Judge Cu~nnungs had w~ltten: 

It is abs~~rd that a boilerplate state court divorce order can collaterally and automatically extinguish 

alaw-abidmg citizen's Second Amendment rights, particulady whenneither the judge issuing 

the order, nor tile parties nor their attome)s are awm of the federal critnioal penalties wising 

from fiream possession after ently of the restraining ordel: That sucl~ a routine civil order 

has such extensive conseqneuces totdy attenuated kon~ divorce proceedings makes the statute 

unconstitutiosal. There n~ust be a limit to goverment reg~~lation 

lawful fiream possession. 

This statute excee& that limit, and therefore it is unconstitutional. 

It was, however, his Fifth hendment concl~~sions hat 

... 

appealed n~osto me; e.g, The conduct tlus statute 

criminalim is mdumprol,i~ifrrm, not malum in se. 

Section 922(g) (8) is one of the most obscure of crinWl provisions. Here, Emerson owned afircm, and 

knew or should haw known that if, for example, he was convicted of a felony, he would have to torelinquish 

ownership of his firearm. If by chance he did not !mow this, the sentencing judge or the probation officer 

w011ld have inforuled him of the lam. Nevertheless, when Emerson 1% made subject to the restmining order 

telling him to not lta~xs his wlfe, Emerson conld not have lu~own of the requirement to relinquish llis gun 

r~nless the presiding judge issuing the onler told him. In this case, the state district judge did not tell EII~TOII 

about the requxement. Emerson's attorney did not tell h eithel; became Emerson did not have a lawyer. The 

fact tl~athe restraining order coataitincd no reference to guns may have led Emerson to believe that since he 

comp!ied with tile order, he could cmy on as before. 

... 

Because $ 922 (g) (8) is an abscure, higl~ly technical statute with no mens rm req~~iliwnent, it violates 

En~e~son's FIRII Anlendment due process rights to be subject to prosecution without proof of knowledge th~t 

he was ~tolating the Stahlte. 

8 VOICE FOR THE DEANSE WWW.lCDlA.COM DECEMBER ZOO1

AND THE WINNER OF ROUND TWO IS.. .Dl- 

The panel was much less impressed with the language than 1 was 

and fook less thm a page to dispose of Bmersonl's Due Process Clause 

argument Iucluded we~ere these bets uhich were not in the C~~mmings 

opinhn! 

. . .Bmersoa filled out and signedBLR Form 4473 when, 

on October 10, 1997, he pi~rchmed the Beteta semiautomatic 

pistol referred to in Court 1. This nIforded 

notice to Bmerson that so long as he was under a court 

order such as that of Septen~bw 114, 1998, fde~xl lm 

prohibited his conlinucd possession of that weapon 

In a "smnething for e1ay011e mode," the court determined that the 

Second Amendment protocts individual heficans in tlw right to 

keep and bear am~s but went on to conchide that this right, protected 

by the se&nd Amendment, is subject to rwtricllons that are resonable 

and are not inconsistent wit11 Second h~eudnlent rights as they 

have been vieH.ed historicdlp. 

The t~iedia rwtion ws predicable - but not 11eceF6a1Uy men- 

~nte. In an 'bbo~~e the fold" story an the front page of the October 22, 

2001, edition of T&sInw~)a;Jolm Co~mcil writes, 

In (he most comprehensive rc~lisg on the Second 

An~enflment in n~odero hisiory the 5th U.S. Circttit Gon~t 

of Appds rrt~led last week that indiikltials lave the right 

to own firearnls, yet Cangrcss may limit tltat right 

Tlio decision is the firs in decades to hold clearb that 

theright to bear alms belongs to ordha~y citizens - not 

just to the ruilitay or a 'well regulated militm.' 

Mution& sy~ldimted columnist Jalncs Kilpatrick hd an October 

29, 2001, column entitled "High Court May Tackle Second 

hnendmcnt" which included the following: Before the indictment 

could go to tdal, U.S, District Judge Sam R. Cunuuings granted a 

defense n~odon to dismiss. 

He concluded that the challenged provision violates the Second 

hendn~ent. The right to keep a firearm, in l~bview, is at i~tdividwJ 

right Lat week apanei of the S~Circuit voted 2-1 to arm !hat m- 

clusion, but ordeed the cse sent back for furtlmw proceedings. 

Judge Robert hi. Parker- who, onceag&, fires a sil\w bulletputs 

the Secondhendment portion of he opinion in context wllen i~e 

points out hat Ule courl's delalled analysis of the Second hcndment 

issue is dicta: 

I concur in the oplnion except for Sectio~~ V. I cl~oose not 

to jviu Section V, whicl~ concludes thal the right to keep 

and bear arms ouder the Second Amendment is anlndividunl 

right, hecauseit is dictaand is therefore not binding 

on us or on any other court. The determination 

nhctlm the rights bcston'ed by the Second Amendment 

are collective or individual is entirely 1mneces~;uy to 

resolre this cnse and ha no bearing on the judgment we 

dicttte by this opinion. Tkefact that the X4 paga of dicta 

contained in Section V are hteresting, scl~oJarly, and well 

wriawl does not clcu~ge the fact that they are dicta and 

amount to at best an arlvisorytreatise on this long-running 

debate. 

If tlw inajmityws onlyfllling the Pedeitzlff~pnler wit11 page after 

page of non-binding dicta tl~cre utmld be no needfor nte to write scpamtel~ 

As I 11aw said, notliing in tlus case turns on the origh~al inemingdthe 

Seuu~dh~lmidn~ent, so no court ~~ecd follow what tl~emajorily 

has said in that regard. Unfortunnt): hmvever, the majori@+s exposition 

pertains to me of the most hotly-contested issues of the day By 

overreaching in tliearea of Second Amendmen! law, the majoriiy stirs 

this contlme~sy without necrssitywl~en prudence and respect for stare 

clccisis d s for it to say notlling at dl. 

Wlmt's nest I don't think tltat we've 

. 

heard Be last ofBmemn. If, 

tlto~~gh, it Pdkes another 30 months for the en bane cou~ to either 

accept or reject review of the case, it might be even lor~ger than I anticipated 

before we'll get word from \Vmhington on whether or not Judge 

Cummlngs was correct in his analpis. 

NEW MEMBER CITY ENDORSER 

NEW MEMBER 

ENDORSER 

William Bercheln~anr~ 

Fraskie G. Boyd 

Fred ~unuiin~s 

Chris Postel 

Leigh Ann Gonclet 

Ricardo D. Gonmk& 

Jennifer Grady 

David Bryant GrImth 

Stephani H~rdgins 

Mary Jo J1rik 

Larry Johnston 

San Antonio 

San Antonio 

Port Worth 

Decatur 

Austin 

El Paso 

Greenville 

Giin~ec 

Dallas 

Austin 

Port Wort11 

George Scharmen 

Har~y N s 

Inry Moore 

Brock Smith 

Chris Dorbandt 

Louis Lopez 

Jerq Davis 

Jeff Haas 

Rob llinton 

Ben Elorey 

Mimi Caffey 

Dawna Kim 

Amy Suzanne McHugh 

Dada S. McLero) 

Eric Morehead 

Linda Pelton 

Juditll Pena 

Danalynn Becer 

Tlionlas Rees 

David I. Shapiro 

NRRC~ E. 'lyler 

Christoper Woodward 

Pla10 

Austin 

Forney 

Houston 

Gree~lville 

Rio G~wule 

Houston 

Colorado City 

Anstin 

Fort \T1orth 

Dallas 

David Scoggins 

chis DOS~JKII 

Peter BRrret 

Robert Kalgun 

Jerry Davis 

G. Uen Ran~irez 

Bsyce Benjet 

Jeanie EUer 

Betty Blackudl 

Bill Magnl~ssen 

Tim Banner 

VOICE FOR W E DEFENSE WWW.TCDLA.COM DECEMBER SO01 9

D 

wing the interim, certain issues we designated by he leaders of the two chan~be~s 

;ls being iu~po~tant to 

the Sfate at that time. lnterin~ slotlies are vital to tile lcgislatlve process. A thoro~cgi~ review of tile issues 

prepare state lawmakers for the cl~dlenges that await them in the ne\t regulm session. 

Budget ovetsigl~t, teacl~er shorhges, insolance coverage of touc mold, u~rban qml, and publc safety are 

among Le issues included in the inte~itn ci~arges that Lieutenant Gownor Bill Ralilf znd House Speaker Pete 

I.aney released for the standing antl select committees. The following is a list of the interi~n charges for the cornnllttees 

studying crinunal justice issues. 

The House Colnn~ittee on Corrections is clwged to: 

1. Sh~dy conunmllty snpelrision ccasloods, the effect of officer-to-offender mtios and the impact of 

caseload rcdnctions on rcvocntions and incarceration costs to the state. 

2. Shdythe qualily and mnilabihty of residential facilities and the potential cost savings of enhanced residential 

sentenciug alternatives to long-term incwcel%ion 

3. Review the fees assessed on adult oNende~s and tl~eir impacts on community supelllsiol~ and parole. 

Consider offenders' abil~ties to pay supc~visio~~ fees and any impact on revocatio~~s of parole. 

4. Study ll~e delke~y of healtlsare within the Tew pplison s)stem, including the nun~ber and types of 

healtheare practitioners i~ecded, the recruitment and ~ctentior~ of tl~ose practitionels, ~nanagement of 

cl~ronicl~seases, and the use of telemed~cine and other lecl~oologies 

5. Actively monitor the s~gencies under tile committee's 0\~1rsig11t jurisdiction. Specifically monitor the 

implementation of staffi~g and tlalning progwns at the Terns Department of Criminal Justice ant1 their 

eNects on tile sdey of both inn~ates aed std. 

Tlte House Conunittee on Cri~~~ii~al Ju'isprt~dence is charged to: 

1. Review cl~anges is fede~alaws and law enforcemeut procedures, as well as reconm~endat~oas from state 

and natio~lal age~~cics c11;uged with homela~~d protection, to assess tile need for cl~anges in shte c~iminal 

law to protect life and property nod to detect, interdict antl respond to :~c$ of terrorism. 

2. Comider wa)s to cooperate vith hiesican sfates to reduce iutemational dmg t~xfkking. 

Keith Hn~tpton 

CAPITOL 

CORNER 

3. Re\.iew the statuto~ylaw governing the use of devices ~OWII as "eight-liners" and soggesT\mys to eliminate 

ambiguity about tile legality of thelr possession and use 

4. Study trends and methods involvcd in identity theft in 'resas. Suggest NR)S to reduce his type of uime 

5. Consider the inanner in wl1ic11 sewd assaults arc reported in Texas, and speciOcdly address the u7ide 

discrepancy behveen stetistics reported in the Uniform Crime Report and cstlmates of other groups, 

suc11 ;ls the Natio~~al Crime \'ictims Research and Treatme~lt Center 

Tile House Con~n~ittee 

Jnvenile Jwtice all11 Fwiily lsslles is charged to: 

1. Exanme tile roles of an xttorney ad litem and guardian ad litem ill ccrtflin suits affecting the pnrentcluld 

~elationslup. 

2. Renew d~sposition patterns, uuifoln~ity of repolling, and evaluitt~on of jmenile offense rases ululer thc 

p~ogrcssi\~e sanctions guidelines. 

3. hnmioc the role of gestational agrce~uents and their potential impact 011 Texas Panily h\\: 

4. Re!ic\v stale and lod school district ~NOIS to dd 

\\

5. Actively momolitor RgeIIcie~ ;UI~ programs nnder tile conin~ittee's oversigld 

jnrisdictio~~. 

'Il~e House Conunittee Public Safety is cl~rulged to: 

1. Shidy current laws relating to Uie possession of weapons, hclnding 

but not hied to the adn~inistmtio~~ of the concealed 11mdgun lam, 

and interactions ;utiong state, local and fedeml laws comrning 

Eren~n~s. M h ally appropriate recornendations to enl~znce the 

&ciency, consistency md clarity of the laus 

3. Gather information itiddto state m~d I d anegen~planning and piep;ud~~es 

fn. major tlrsaste~s, inclndb~g emelzewq nmhg qslems tu~d 

Lu'gde evncna(ion phning. Det&Ie nherlwle@htlm~ is nmlecl to 

plwtect Ufeandpmpeapmnt to detsl, ine~dict and lqo~~dto acts of 

letl~lisnl. 

4. Eimhc the nse of advanced technologies by local law cnforcen~eot 

ofnccs, including \xrions for~~~s of high-tech su~veillance. Consider 

the dilenmm that exkt between effective iav &cement and gove~luneut 

cncroachlnn~t into eitize~is' private lives. 

5. Actively omnitor age~~cies md prognnls under the committee"^ oversight 

jurisdiction. 

1. Review avdlable teldditatio~~ progr;uns hat provide dter~iati'es to 

inrce~%tonfor non-violent, drug-dependent offu1de1x to determine 

their effectiveness, md recommend for further nse any suitable conkmnnaity-based 

propms tl~at safeiy rednce recidivism ~~mong snch 

offellaels. 

2. Study the in~pacthat the rancation of techn~calvinlatow of conlmnnity 

supc~vision 112s upon the state's prison populz~Uon, and make recarumendations 

for red~lcing the ~wocation rate among such offenders 

rvithont ~indulyinterIcd~~g uith loal judges' discretion. 

3. Monitor the imp!e~nenlation of tl~e Tews Dep;u.lment of Criminal 

Justice's retised i~nnae classincation s)5tem; wonitor TDCJ emp!o~'ee 

recrnitnient RII~ 

retention &or& review the pod conduct time credit 

s)stem used by TDCJ; and ~*econm~end changes, it ally, needed in 

these areas. 

4. Review the n~alagane~~t sod ow~sight of p1Wate prison bcilities md 

~ecomnlend cl~tu~ges, if any, to tale current s)stem. 

5. Monitor efforts to increase the adabUity and effectiveness of state 

and local me~~tal hdtk senices for adult aotl juvenile olfentlnx, and 

recom~neild improvements uhcre applicable. 

'Il~e Senate Jurisprudence Commniltee is cltarged lo: 

1. Study the ebctiwness of the prngxssive sanction guidelines for juvenlle 

offenders. Determine wdletber tho guidelines established by H.B. 

327, 74th legislatnre, are bd~lging Cm1Sistelie): unifar@, md prcdictabllity 

to jtivenile dispositions UI an effort to facilim juvenile jnstice 

planning md impro~e the dlocatiou of resources u$vidiin the jwenile 

justice qstenl. Tlle Con~rn~ltee sbdl make recomnlendatio~~s for 

iniproving the effeclivei~eclas of jnvenilc sanctions in protecting pnbUc 

safety and rel~abilitating offe~xdeis, 

2. Study the jntlicial qstern's 'ewnue structure and make recon~mendatians 

for in~prouing the coUection, dispersal, and sccounting of court 

costs, fees, and Dnes by sate and local entities. This study should 

include a review of aU court costs and fees (~~ccpt tliose retakd to 

the Clime Victims' Compensation Fund) to ensure that they are neeessay 

md are adeqnxtely hd0lling their urended pullrpose. 

3. Shidy and make recoounendalions forthereapportlonment of indicial 

districts pnnuu~to Article V, Section 78, Texas Canstihltion. 

4. Study and make recommendations for improving fhe stroclure of the 

state's t~ial court sjsteo~, including, bnt nnot U~nited to: Improving the 

q~i;tli& cost-effectiienes, and uniforodty of the visitlog jiidge progfani; 

devising ob]nctin! miterla to be used by thelegislsuce to determine 

when and where additiond trhl courts should be create& and 

dadlying jurisdictional conflicts beheen courts. 

As these committees hke on these interh clkarges, they ull most 

certainly 

. 

11ar &am ti& ptmecntolx, victims' rights gronps, the 

Attorney General's Office, and judges. It is eqndly iulportant they 

hear fran~ ns. Anjnne interested in participating in educating any of 

these committees sl~ould contact Keith Hamplon, TGDW k@dati\'c 

Dilrcror. 

What every lrial lawyer needs, 

permanent, larnlnafed, and rlady to ao tor your 

rrlal lotobooh 

4 separate cheat sheets 

1. Texas Rulesof Evidence -allre@ 

wnt rules of evidence at your flnger 

tlp wllhpractlce commentaty 

2, Maklng and Meeting Objections - 

obJectlons and responses to cornrn 

mon evidentlary hurdles 

3. Common Drug Offenses-complE W~WAE v MC D 

4. lesser Included Olfenses-sfatuloryand 1 I 1 

ar completed form to TCDidaI 5IZ46P9101 

VOICE lOR lHB DKlENSE WWW.TCDLA.COM 

DECIMBlR a001 1 I

HOW TO SET YOUR BllllNG RATES 

PART I 

This article is designed to ass~st criminal defeose pwctitioneix in unde~standing the ~IIICBMI side of ~naki~~g 

a living. Todty's market and tl~e incrensed client sophisticfition wvl~en selecting legal se~~Ices are nt&ing 

it necessay to carefi~uy evahate billing pwctices. %ether yo11 prefer task-basd billing, value-based billing, 

hourly billing or other billing methods, it is crucial to kuow the cost of ex11 billable hour. Only after you h e 

deter~rined tlte cost of mch billable haul; will you be able to stmcture yom fee ilrnngentents The calculations 

below show you the break-eve~t point aud can be used to show your profit margin. 

Follousing is a swle calculntion based on a solo practitioner with a monthly sala~y of $5000 and a sec- 

'etaly at $2000 per montlt. The o h rent is esfin~Ned at $2500, a part-time n~nner/clerk at $500 and taxes, 

insolmce, supplies, efc. at a told of $2600 per mo~ttl~. 

Monthly Portru~la for Solo Practitioners \lith IIourly Billing (May be Adjusted for Groups) 

Total ~nontltly eupenses: 

Less attonte)~ sala~y: 

Overhead costs: 

divided by billable IIUII~S: 

Overhead costlbillable how 

plus attorney's rate 

Total cosl per billable hour: 

$12,600.00 

$ 5.000.00 

$ 7,600.00 

160 l~ours (based upon 37 110~1s hiUed/week) 

THE 

CORNER 

OFFICE 

Anal)sls 

Tl$s calc~~latioo results inn wst of $78.75 per billable houc If you hilled your ti~tte at $78.75 utd your 

Gxed and wiable eqmses were the same as in tile above eumple, jot1 would be at brmk-even. ~\n)'billing 

above $78.75 would result in profit. 

The da~tga UI this matpis is thd it nukes no do\va~ce for billing adjuslments, such as write-downs or 

wvr~te-offs due to a lack of h1U coUectio~ls on your fee. Furlherntore, it reyires thirt).sevc~t hauls to be billed 

each week Therefore, while il is alxolutely neEessaly to know the cost of each billable hour, you nutsf take 

the collecl~biht). wrinbles into consideration when setling ).om fee. 

In the interest of good client relations and ethical comnplimce, it is weU ndvised to set od your billing pmcbees 

h a legal fees agreement or (see the website for exan~ples of legal fees ag~eements). Tltis wvU not only 

promote good clieut relations, but it will also inclmse t11e coUectibllit)' of your accounts receiwbfe. 

Montl~ly Porolula for Solo P~xctitione~x wit11 Task-Baed or \'slue-Based Billing (May be Adjusted for 

Groups) 

Total ~noittldy expenses. 

Plus attorney's sahy: 

Total o~~erlleadd costs: 

fees earned: 

fees earned: 

fm med: 

fees arned: 

Total fees ex~ted: 

$ 7,500 (3 ~ptdnedfclong cws set at $2500/m) 

$ 700 (2 jdl releases) 

$ 6,000 (4 ~aaioed ~ n m ~ o sctN r $15Wnse) 

$ (coort appointed fees) 

m 

Analysis 

Tltis calculation dtows the ltumber of cases OIIC ntust take and the antonut of money ot~e must set for each 

cae m reach a break-cwren pornt evely month. This fornlula does, howew; allow for tl~e attorney to pay her 

office expenses and her salaq, but does not allow for write-downs or write-offs for noopay~nent of fees. 

Therefore, it is necessmy to either lower the office overl~ead, increase the nuntber of caes, or hrrease the 

mount charged per case to con~pensate for those times ull~en cheuts do not honor their legal fees agreement. 

See part Ii in the ne\t issue ofthe Ibicc on how to achieve tlte elusive (ask of selting fees. 

12 VOICE FOR THE DElENSi

Not Guilty Verdicts 

Mike WaMns received a not guilty in a criminal trespass case in the Potter County Court at Imv 

#I in Amarillo. Mc Watkins found an alibi wit~~ess that was critical in Ms case. The custodian of 

recolds for thebcalVMCAappeared witl~ tlie time card for Mc Watkins' client showing theclient 

was at work at the time the complaining witness alleged tile events took place. 

Maurice D. Healy andJeff Poster received a not guilty in Dallas County 011 October 17,2001, 

in a sexual assal~lt case. 

Don Richard of Big Spring received a iiot guilty in Howard County in the 118th District Court. 

His cUent was cllarged Mth sexual assat~lt of a child. The issues in the case were the competency 

of five-yawold cluld who was tluee-and-a-lldl at tlie time of allegation, the poor health of defendant, 

and an unsllccessful attempt at recusal of tlre judge. 

Appellate Relief 

Former US. Attorney, Richard Edward Banks of Houston secured a mandate from the Fifth 

Circuit Court of Appeals on October 26,2001 reversing the life conviction of Glen M. Davis in US4 

v. Glen dl. Dwh, No 00-20538 for possession with intent to distribute cocaine in the Southern 

District of Texas, Houston Division The canviction was reverscd because the trial judge, Kenneth 

M. Hoyt suggested that Davis jettison llis court-appointed attorney and ask questions personally 

of government witnesses. The Court of Appeals fotu~d Hoyt did not properly warn Davis of the disadvantages 

of self-representation and Da~s did not known& and intelligently waive his rigl~to 

counsel. During the trid, Davis expressedfrustmtion with his attorney who reh~sed to ask questions 

on Davis' prepared list. Davis said to the trial judge that they could have the trialwithout llin~. 

Judge Hojt replied, 'We can't have it witl~out you. We can have it without yaw lawyer, though." 

Winston Cochran and TCOIA board member, Danny Easterlin& obtained relief on a fede~d 

writ of habm corpus in Harris Connty on October 31,2001. Judge Kenneth Iloyt of the Southern 

District vacated a death sentence and gwlted a new punishment hearing fox the client. The issue 

was similar to those in Penly I1 wllere the case was tried in 1990 under tlte old statute and thus 

no mmtigatio~~ special issue was submitted to the july Tllis special issue is in~portanto guide the 

ju~y due to hordedine menlal retardatio~l and head injtuy evidence. Mc EasterUug delivered the 

order to Ids client on dath row. 

Probation Hearing Won 

Rick Alley of Ft. Wo~th received a "not h71e" during a felony probation revoatioa. The dieut 

wes on probation for a felony drug case and the allegations were that he had committed 

four family violel~ce assaults. Judge GiU denied the State's motion because the State failed 

lo identify the client as the perso11 who comlnitted the family violence allegations. Tilis resldl 

also required the State to dismiss tile pending family violence allegations. 

HCCLA upcoming events 

WHAT'S OOlNC ON 

IN YOUR CORNER 

OF TEXAS 

LEI US KNOW 

(51214782514 

The Harris County Crhlinal Iayers Association is celebrating rts artl~ual hoUday paw on 

December 12 aud is holding its monthly board nleeting on December 11. Contact president 

Wayne Hill for more inforo~ation. 

VOICE FOR Ill6 OIFINSI WWW.TCD&A.COM DECEMBER 2001 13

READ TnlS BEFORE YOUR 

0 

n Halloween day 2001, the Court of Criminal Appeals decided the case of Stmdger u. State. The case 

addresses voir dire and the propriety ofwhat the Court ternls "commitment que.shons." It is a troubling 

decision, not because it overrules a recent precedent,Maddux v. State, 862 2 S2d 590(Tex. Crim. App 

1993), a fanfiar feature of the Court's opinions lately, but rather because of its adviso~ opinion aspects and the 

apparent willingness of the Court to engage in the micro-management of criminal trials. 

The following question was presented: Did the trial court err when it prohibited appellant front asking prospective 

jurors whether they would "presume someone guilty if he or she refused a breath test on their refusal alone" 

The Court concluded that this wa not a proper question because it called for an improper comndtment ar~d violated 

the rule that an attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical 

set of facts. In so holding, the Court fi~rnished to Texas trial judges and lawyeis not only a set of guidelines 

for determining whether a question is an inlproper commitment question, but also, just in case we have trouble 

applying the guidelines, they have fundshed alist of questions, judged as improper, so that we can conduct our 

trials properly. As a senice to Voice readers, we have con~piled the list of in~proper questions in an easy to read 

format. \Vhat is tmly interesting about the opinion is the ~lunlber of traditional prosecufion vob dire questions that 

the Court describes as improper. while the prosecutors may be ve~y unhappy about this opinion, the trial judges 

are going to love it m it wiU surely ha~~e the effect of shortening voir dire by cutting down on the number of qncstions 

that can be asked of the panel. 

The Coun's analysis started with the p~eliminruy question 'What is a conlmitment question" The answer. 

"Commitment questions are those that commit a prospective juror to resolve, or to refmin from resolving, an issue 

in a ce11ai11 way after learning a particular fact." A question that induces jurors to set the 11)pothetical parmeten 

for their decision making is a commitment question. Tl~c Court held that co~nmitment questions are proper only 

if one of he possible answers to the qutestion wiU give rise to a 'did challenge for cause. Howwer, even if a question 

meets that test, if it adds facts in add~tion to those neccssaly to establish the challenge, it will be impropec 

Tl~roughouthe opinion, the Court gave examples of i~r~proper questions as set forth below: 

1. Dmg Cm: If the evidence, in a l~ypothetical case, showed hat a person was arrested and they had 

a cmk pipe in the^ pocket, and they had a residue amount in it, and it could be measured, :md it 

could be seen, is there anyone who could not convict a person, based on that 

EDITOR'S 

COMMENT 

2. Capital Case: Let us assme U~al you are considering in the pendtyphase of any capital nwrder case, 

okay And some of the e\qdence that 11% come in shows that the victim's fmily was greatly inlpacted 

md terribly grieved and greatly harmed by the facts ... Cru~ you assure us that the knowledge of 

those facts would not prevent you or substantidly inipair )an in considering a life sentence in such 

a case 

3. Open-ended questions car1 be improper: Mlat circun~stances in your opinion warrant the imposi. 

tion of the death penally 

4. Probation questions: Could you consider probation in a case where the victim is a nun(or where n 

child had died etc.) 

5. Mitigation questions. A prospective juror h a cnpital me camot be asked whether \+ctim impact 

evidence \vould affect h~s resolution of the mitigation special issue. But you cm ask whether 1I1e1e 

might be cbcumstruxes that would mitigate agaiust the dent11 penalty 

6. kbture Danger questions: The State cannot require a prospective juror to conuuit to the proposition 

that potential rehabilitation is irrelemt to tile question of future d;mgerousness; rehabilitation is a 

proper consideration. 

7. The One \Vitness question: Could you Gnd sonleone guilty on the testimony of one witness 

8. The Circumstantial hMdcnce question: Could you find someone guilty on circm~~stantial evidcncc 

alone 

14 VOICE FOR IRE DEFENSE WWW.TCDLA.COM DECEMBER 2001

I 

I 

The Col~a spec@caUy excepted Nunfio type quesfiong fmm its holding: 

If thc victim is a nun, could you be fair end irupartlal It is still permissiblefo 

get jum3 to wmmittobe~~~~airruul.Impa~zlal~ Wlm &law 

require a certain conm11tment fmm &e pfon the amcys may ask 

whether they wn follow the law. As mples, the coua stated that the 

defense could legltimafely ask prospective jurors whethw they could follow 

a faw that rquhs them to disregard illegally obtnfned evidence, 

whether they could follow nn instmciion requiring ~~obo~ation of 

accomplice witness tmknony, or whethcc they could f&w a law thaf 

precludes them from holding against the defendant his failwe lo &*. 

The problem wit11 thb rule is that it was iuconslstentwith theprohiMtbn 

agilinst the evfdedtiary burden questians, such as the one witness 

qnestion or. tire dm8 GQ~ question listeddro~e. That prohibitIan shonld 

prevent the Slate in a DW we fmm itsking uhaf facton would lead a 

pan81 member to hellnv thut sonmnc Isi~~toxitNed. 

The probation question an&& isinteresting in that if probably prohibits 

the Shte from rehahilitatingv&wen who cannot consider pmbation 

In a murder we with thcold '&able mwy killing exmple. 

Gefflng back to the qnestlon at Issm in the opinion, the Court found 

that tlrewir dire qu&un "would pu pmunlo someone gnIIty if he or 

she r k d a breath test on fhcir refusal alone", was an improper eommifnlent 

question in oiher wds, you mnor ask a prohpective juror 

vhether he or she would vate lo convict someone based on lefly insuffioinlt 

evidence, Surely, a I1\VI conviction based on no eYidence but a 

breath trst rclud would be rwmed based on legally insufficient eviden@. 

Contrary to that asseiian, the Couft concluded dlntif is pe&thle 

10 presumeguilt from a breath test reh~snl, and ti~e~xh~e, the a m 

to the question would not lead to a valid challenge for mlse.. 

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click on the TCDLA lago on Vitec's website or mention you are a TCDLA member 

if you call.

NO. 123454 

THE STATE OP TEXAS § IN THE DISTRICT COURT OF 

OF THE 

Keith S. Hampton 

MOTION FOR FORENSIC DNA TESTING OF SAMPLES OF SPERMATOZOA 

DEFENDANT hereby peiitions this Hono~xble Court under the authority of chapter 64 of the Code of 

Criminal Procedure to appoint the undersigned attorney for pu~poses of this Motioa pmuant to Article 

64.01 (c) of the @de of Criminal Procedure, and order the - County District Attorney's office to make 

available acertain sample of forensic evidence for testing by nameand address of qert. Insupport theteof, 

Applicant respectfully shows the Court the following miters as set fort11 in this motion: 

Statement of the Case 

Defendant was convicted of capital nlurder and sentenced to death on April 19, 1990. His death penalty 

conviction WRS ilfern~ed by the Texas Court of Crimind Appds on June 28, 1995. See Patrlck u. St* 

906 S.W.2d 481 (Tex.Crim.App. 1995). After an unsuccessful petition for certiorari to the United States 

Supreme Court, he filed his state wit application. On December 4, 1997, after a hearing, tlus coua issued 

finding of fact and conclusio~ls of law and recommended that relief be denied. On Aplil22,1998, the Texas 

Court of Crimm;llApp& denied his writ application. Elrpmle Patrlck, 1998 WL 210579 (Tex.Crim.App. 

No. 71,105, delivered Apr1122,1998) (unpublished). 1Ie laterued a federal writ petition, which iscl~rrently 

pending in the District Court under Civil Action No. 

Samples Confaining Biological Materid Exist 

And Can Be Subjected to DNA Testlug 

In tbe possession of the - County District Attorney's Office are certain samples of forensic evidence 

nsed in the state prosecution of Applicant, namely, samples of spermatozoafound in the vicietim's body 

and blood samples from Applicant. Tbe DNA from these items have never been compared to determine if 

tl~e spermatozoa m e f~om Applimnt. 

These itenls were collected pursuant to the Comty Distdct Attorney's Office 1989 capital murder 

prosecution against Applicant. h preption for trial, the District Attorney3 Office sent various itents 

collected ham the c&ne scene to the Southwestem Institute of Forensic Sciences (SWiFS). The SWlFS 

Agency Refaence Nnmber i s . These an! the same items identifled by other agencies' numbem: 

Jolice Depa~Zment number is . County bkdical E~aminer's Department number 

is 

On September 12, 1989, "arper8 t~atne'~ of tbe Southwestern Instih~te of lrorcnsic Sciences sent a vaginal 

swab from victim to "MI ~Vflme'! The accession number for the vaginal swab is . On 

September 21, 1989, 'kvp~Bnome" sent a blood san~ple from Defendant as weU. The resulb were later 

introduced as evidence in trial as State's Eddbit #94 (gene ampltfication from the swab) and State's Wbit 

87 (gene amplification from ddendent blood type). The reference number for Applicant's blood sample 

is known by the 

County District Attorney's o5ce. 

On the vaginal swab, 

could not do m RFLP an;dysis, bnt did do PCR testing. However, at 

that time no DNA could be amplined from the spermatozoa. "Inl, hhe" nowlias the technology to extract 

the DNA from the vaginal swab sample and compare it with Dcfendnnt's DNA, Applicant therefole nloves this 

Coua to order this DNA testing, costs to be borne by Applicant. 

State is Required to Deliver Bvidence to this Court on Receipt of Motion 

Article 64.02 oftl~e Code of Criminal Procedure provides: 

On receipt of this motion, the convicting court sld provide the anor~~ey~epresenting thestate 

with a copy of the maion, and require the attorney representing tbe state to deliver the evidence 

to the court, along dtb a description of the condition of the evidence, or explain in 

writing to the court why the state cannot deliver the evidence to the court. 

Court's Authority to Order DNA Testing 

Article 64.01 of the Code of Criminal Procedure provides that the convicting court may order forensic 

I6 VOICE FOR THE DEFENSE WW.TC0M.COM OECfMBER 2001

DNA tesUng of evidence conldning biological ntatefial secured in relafion to the offense and was in the possession of the state during the trial of the 

1 offense, but vas not previondy subjected to DM tesUng or "alhougl~ previonsly subjected to DNA testing, un be subjected to tdng with nerver testing 

teclmiques that prodde a reasonable ilkelhood of results BI@ are more accumte and probative than the results of the previous test." Tex. Code 

Crim. Proc. at. Gl.Ol(b). The hiologid material was subjected to DNAwitltout probative results. The technologynowexisfs wIiic11 would removemy 

uncertdnty about the identity of the person to whom the spermntozoa belonged. 

I 

If Exculpatory Results are Obtained, It Is UnItkely Dehdant Wonld Have Been Convicted 

Patrick was chai@ with !he offense of capital mrder by indimtent, deging that he knowingly and intct~tionally caused the ddl of Nina 

Rutherford Redd by cuttiug her with a kdfe and by striking her with a bluut object and that heintentionally caused her deaf!^ while hew 

in the cou~se 

of committing and auenipting to comn~it bnrgt;ul. of a habitation. (CR, p. 3). ll~ease a@st Applicant was entirely circumstantial. The State relied 

upon blood samples @ken from the scene, a palmprint at the victim's and bNe marks. me opinion from the Con~ld of Biuninal Appeals is 

athclied. fie ppaln~print was hotly contested at trial. Bile mark evidence is dubious evidence. DNA evidence fa~wable to AppJicant w011Id have created 

a rwon~blc probabity that Pat~ickwould not have been convicted. 

This nlotion for DNA testing is not and does not delay any wecntlon of scnterce, but is consistent with the goals of the criminal justice system, it., 

freeing the innomt and punisldng the @I@. 

Request for Findings 

Applicant requests that tlle Court make the fdlo\ving findings: 

(1) the evidence still exists and is in a condition making DNA testing pouibk; 

(2) the evidence 11s been subjected to a chain of custody suffic~ent to establish that it ins not been subdtuted, knnpered with, replaced, or altercd 

in any n~atexlal respect 

(3) that identitywm or is a11 issne in the case; aod 

(4) a reasnnahle p~obab&ty exists that the person would not lime been prosecuted or convicted if exculpato~y resulls had been ohtnined through 

DiNA testing; and 

(5) i'atrick's request for the proposed DNA testing is not made to unmonnbly delay the execution of sentexce or admhist~%lion of justice. 

PRAYER FOR RELIEF 

WHEREFORE, PREMISES CONSIDBRBD, Appli~a~ii respectfully requests that this Conrt order the County DisWict Attoinefs office to 

deliver to the Court the above-referenced forensic smples available for testing and fonvard ilmu to Gene Screen to cotupare Applicant's DXAwith the 

sample of spermatozoa 

Respectfully sul~mitted, 

KBm S. HAMITON 

819 West 11th Street 

Anstin, Texas 78701 

612) 476-8484 

(512) 762-6170 (dl phone) 

(512) 676-0953 (fa) 

Wplaw@swbell.net 

Texas Bar. No. 08873230 

1 hereby certily that 1 haw mdlcd a true and correct copy of the motion, this day, , to: 

h k Prosecutor 

Assistant District Attorney 

County District Attorney's Omce 

Honorable Jndge &en J. Creene 

address 

Keith Hatnptor 

VOICE FOR W E DEFENSE UlWW.TCDLA.COM DECEMBER 2001 17

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VOIC€ FOR MI DENIS

A JUDICIAL 

PERSPECTIVE 

ON SENTENCING 

ISSUES 

mess punislment. Counsel cannot 

make an intelligent decision in 

this ~ w runless d he has as 

much Information as possible 

- 

BY RANDY SCHAFFER 

C 

rimid defense lauyers tend to focus on the guilt-innocence 

stage, oftell to the exclusion oEt11e punisl~mel~t stage. Alll~ougl~ 

most crinunal cases are resolved by plea agreements, occasionally 

the parties cannot agree, and the judge or n joty must assess 

ponishme~~t. Counsel lm~st have a reasoned sentencing strategy for 

those cmes. 

Defense IawyelTen can benefit fro111 the perspectives of district judges 

on sentel~cing issues. I sought to inlelview the 22 district judges in 

Harris County regarding various sentencing issues. l\velve judges 

agreed to an inten'iewv. Most had previously been prosecutors; some 

h~d also been defense la\ryers. Tl~eir judicial experience rmged from 

about one year to almost 20 yeas. I agreed that I wooold not disclose 

tl~eir names nor any aspect of their sentencing philosoph): assunling 

that it \\'as ~n~entioneti duri~~g the intenicw No quote would be attributed 

to a particular judge. We discussed broad sentencing issues with 

a view to~vard determining the factors tl~at defense cou~~sel should consider 

in electing the sentencer, requesting a Presentelm Investigation 

Report (PSIR), and presenting e\rirlence and arg~gumenl. 

This article reflects the obselmtions 111ade by tl~e 12 judges. It does 

not reflect my personal opinions, unless speci6c:ffly noted. Needless 

to sa); the judges were not onaninlous UI their views on various issues. 

This article seeks to present the general consensus of opinion :inlong 

the j~dges inteniemed, 1 an1 grateful for their time md \\~illiogness to 

stlare their opinions to l~elp defense Ianyers more effectively represent 

their clients. 

PUNISHMENT ELECTIONS 

A. Detenuining the Judge's Sentencing Pl~ilosopl~y 

The thresl~okl question is wl~etber to elect the judge or the jury to 

will also disclose the probable sentelm tl~cy \\ill impose if a july convicts 

the defendant. Otl~er judges wiU not disc~~ss sentencing at dl 

Com~selm~st dctern~ine \vluch judges will discuss sentencing issues. 

Counsel slmld ask the court coordinator or the court reporter 

about the judge's sentencing pl~ilosoplly especiauyif they have vorked 

wit11 11im for a long time. Counsel sl~ould co~~sult prosecutors presestly 

or fornlerly :!signed to Illat court "if he can trust them." Former 

prosecoton who 11ad beo~ :wignet1 to that court and are now defense 

lawyers migl~t be more reliable sources. 

Co~~nsel sl~oulrl nlso consult with otl~er defense lanyers about the 

judge's sentencing pl~ilosophp However, it can be dangerous to rely on 

the opinion of a lawyer w11o I I : ~ a very good or vely bad experience 

wit11 a particulxr judge, ns lus opinion probably will be affected by tl~c 

result. A cwtt;lct lawyer assigaetl to a court, wI1o has obse~~ed the 

judge on a daily klsis, probably is the nlost reliable Iauyer to consult. 

I suggest tllat co~~nsel review the sentences the judge llas assessed 

in a particular type of case following o pre-sentence iln.estigation. The 

District Clerk in most cou~~ties maintins a judgment book containing 

this iofonl~ation. Counsel can usudy ooblaio and read the PSlR in each 

case and, hom the sentence imposed, attempt to 111x17 co~~clusions 

regarding the judge's sentencing pldosopl~y in that type of case."Tis 

empirical data is probably n~ore reliable Illan the opinions of laayers 

and court personnel.3 

B. Observations Regarding Sentencing by the Judge 

The judge dl receive more information about the defendant 

tl~rougl~ the I'SII1 tl~an a ju~y typically wil receive through the evidence. 

If counsel believes th~t the State cm present i~annful information to the 

jutlge through the I'SlI1 that \vould not be admissible before a jut): be 

probably should recommeml that a july assess punishme11t.4 

Conversel~ it co~~nsel believes tllat he can provide favorable infomati011 

tl~rougl~ a defel~se PSlR that \\sould not be admissible before a ju): 

he probably sl~ould recommend that the judge assess punishment. 

Judges are more co~~sistent md predictable ll~an juries in the 

ZO VOICE FOR THE DEFENSE WWW.1CDUL.COM DECEMBER ZOO1

A JUDICIAL PERSPECTIVE ON SENTENCING ISSUES 

assessment of punishment, as they knowwllat a case is worth based on 

their experience in the crinlind justice system. However, as elected 

officids, judges are subject to politid pressure from the media, the 

police, and specid interest groups such as victims' rights organizations, 

Son~e judges will not grant probation or a short prison sentence 

in cases where they are concerned about the potential for advelse 

politicd consequences. Thus, counsel should not overlook the possibility 

that, for example, the judge will impose a harsher sentence thw 

he normally woukl in a lugllly publicized case. 

Judges are more desensitized thau jurors in assessing puni~hIIIent 

beca~~se they do it so often, The defendant's age, educztion, en~ploy 

ment, race, and socid status tend not to matter, Most judges feel that 

their prinmy obligation is to protect society; the best interests of the 

defendant are secontla~): Each judge has "pet peeves," including t)pes 

of offenders that he dislikes more than others. The judge may believe 

that certain t)pes of offenders cannot be rehal)ilitated, md he will 

impose a ha~xh sentence regardless of any mitigating circumsknces. If 

a judge believes, for esample, that sex offenders cmot be rehabilitated 

through treatment progranls, connsel should not elect that judge to 

assess punishment if the god is to obtain deferred adjudication probation 

for a sex offendel: 

The defendant should elect the judge to usess punislment in aU 

drug cases, especially if he is a repeat offendel. The "average" judge 

is less likely than the "ayerage" juror to be vindictive in drug cases. 

C. Observations Regarding Sentencing by the Jury 

Jury sentencing, by its \,ely nature, is less predictable th:m sentencing 

by the judge. Judges referred to ju~y sentencinp-as "gambling" and 

"rolling the dice." 

If the facts of the offense are 'bad" (a lot of violence, [IIII~S, or 

stolen property), juron are more likely to be shocked and assess a 

hash punish~nent due to their lack of experience ill knowing what a 

case is worth. They are esl~ecially likely to be hmh on es-convicts. 

Conversell: jurols are more likely than jndges to forgive the defentkunt, 

especially if he is young, a hst offendel; or othenvise "exceptiond." 

Jurors are not accustomed to sending people to prison. 

Accordingly, they arc more likely to be lenient if they perceive the 

defendant to be dese~ving. For that reason, it can be a ve~y effectiw 

stcltegy to have the defendant plead guilty to a juty and ask for leniency 

Perhaps the most significant atlmltage to jmy sentencing is the 

possibility of a co~lipronlise\.errlict. If the facts are close oa guilkinnocence, 

the jul). may convict the defendant but assess probation or a 

short prison sentence because of "residual doubt." 

The general coasensus is that the defendant should elect the ju~y to 

assess punishment in the fouowing situations: 

the judge cannot gnnt probation following cowiction by 

a ju): and the defendant has a resonable chmce of 

probation; 

a pungfi~xt offender has colnmitted n crime ofviolence; 

the case is highly publicized ad the judge might feel 

politicd pressure from the media, the police, or special 

interest groups. 

A. Strategic Considerations 

If the parties cannot agree on a sentence, defe~~se counsel must 

consider nlletl~er to request a PSIR, \Vhen I asked whether the judges 

would reconimend that defense lawyers request a PSIR, dn~ost eve~y 

comment focused on the disadvantages: 

"They are a pohticd hot potato." 

"They give the compldnant and his family the 

opporhlnity to be present and put pressure 

on the court." 

"I was burned by then1 21sa defense attorney." 

"I hate them." 

"I wo~ildn't use them." 

The only coniment that arguably could be construed as positivewas, 

"They are a good vehicle to get e\~er@ing before the court in a concise 

nimner." 

Counsel should not reqoest aPSlR unless he knows the sentencing 

philosophy of the judge in the type of case under consideration. That 

said, there aw reasons not to request a PSIR that counsel cannot know 

abont or anticipate. For example, one judge conmenfed, "I look at 

how prior probationers for that offense did while on probation. If I 

revoked most of them, I wil not gi1.e probation in that type of case." 

This judge gave the example that dl defendants placed on probatiot~ 

for aggmvated robbe!)' in that cousl had been revoked RII~ sent to 

prison, c;ursieg the judge to conclude that robbe~s are not good callditlates 

for probation. Because counsel cmot know each judge's 

experience with particular types of probatione~s, it is difficult to make 

a truly infornled decision wl~etl~er to request a PSIR. 

Counsel shoulrl not request a PSlR unless the defendant will 

unequivonlly admit guilt. Judges are offended if the defendant 

requests leniency after tic~~png in the PSlR that he committed the 

offense. One judge conmnlented, "Once a defendmt pleads guilty, I 

assume that he did it, disregard a prior low reconin~endation, md giw 

him what the case is worth." 

Counsel should not request a PSIR mlless he knows ewy aspect of 

the defendant's background, as he cannot control the infonnatiw~ presented 

to ll~e judge. The PSIR will IypimUy contain hearsay and other 

information that wo~ould not be admissible at trial, such as prior arrests, 

charges that were dismissed or resulted in acquittal, m~d juvenile 

records. Counsel must be :Iwxre of all the bad information tlint could 

be presented in the PSIR. 

Should the defendant reject the State's plea bargain offer md not 

want a july to assess punishment, and counsel feels that a PSlR is too 

risk, :lltematives are avdable in some courts. A few judges mill discuss 

the case with the Imyers and disclose whether theywill glmt probation 

or go below the Slate's recommendation if the defendant pleads 

guilt)! Son~e judges are amenable to a preplea PSIR, in which the probation 

officcer prepares a PSIR, tl~e judge reviews it and annoumes tl~e 

sentence he wiU impose if the defendant plmds guilty, and the defenthen 

h:s the option of pleading guilty ;md accepting that sentence 

or setting the case for trid.5 

Altl~ough none of the judges mentioned this, I feel that the PSIR is 

often written in a tone that is intention:iUy unfaro~xble to the defendant. 

For exxnple, statenlents of the prosecution xitnesses and police officels 

are asserted as fact, wlrile statements of the defendant and lus family 

are aserted as "claina" (as if the probation officer does not 

believe, but lacks the the to disprove, thek representations). In my 

experience, a I'SIR in Harris County 1;lrely benefits the defendant md 

often results in a sentence greater than the prosecutor recommended 

(fouowed by an application for a writ of habe= corpus). 

1 recommend that if counsel requests a PSlR with the expectation 

VOICE FOR THE DEFENSE WWW.lCDLA.COM DECEMBER 2001 21

A JUDICW PERSPECTIVE ON SENTENCING ISSUES 

hat a particular judge will assess puniSlrment, counsel sl~ould nuke a 

notation to that effect in the plea papers or state it on the record at the 

plea proceeding. Should another judge be present at the punislm~ent 

hearing whom counsel does not want to assess punishment, co~tnsei 

nmt request a continuance; if it is denied, com~sel must object to that 

judge msscssing punisiment and moi*e to wit11draw the guilty plea. 

B. lbes of Cases for a PSlR 

&!general consensns is ti~athe defendant sho~dd request a PSIR 

in tile follouring sifuations: 

tile defendant is a good candidate for probation but the 

district attorney'spolicy does not allow the prosecutor to 

recommend it; 

the defendant is a young fust offender; 

the defendant 11% a lesser role in the offense, such as 

complicity as a pnrty instead of as the primay actor; 

the defendant has stolen a lot of property, paid a aubstanHal 

portion of t11e restitution, and 11as a ~palislic plan 

to pay the balance within the foreseeable future; 

burglay of a habitation mes (expect boot camp as a 

condition of probation); 

drug cases (especidy where the defendant has a dn~g 

abuse problem); 

mes involving a consensual sexud encounter with a 

teenager. 

The defendant should rarely, if ever, request a PSiR in an agqaMted 

sexual assault of a child case. As one judge commented, "I'm 

responsible for the defendant whiIe he's on probation, and I will not 

take responsibility for a sex offender if the State and the victim's hily 

oppose probation!' 

C. Objections To The PSIR 

Defennse counsel should present written objectio~~s to t11e PSIR to 

the judge wd .ell advance of the punishment hearing, instead of making 

old objections at the hearing. Counsel must ensure that the judge 

rules on the objections on the record. Should the judge omule an 

objection, it means that he considered the evidence. If he erred in 

doing so, an appellate courtwillreve~se and I'emand for resentencing.6 

Counsel should object to ail material fach~d inaccuracies In the 

PSIR and enscrre that they are cor~aed. He should object to unadjudimted 

extraneous offenses, especially if the State did not provide 

timely notice. Most judges will not consider an unadjudic&-d exttaneons 

offense mentioned in the PSIR if the defendant objects, unless 

the State then offers testimony at the punisl~ment hearing and provcs 

beyo~~d a reasonable doubt that the defendant committed it. However, 

as one judge O~SCN~, '1 will sbike an unadiudirated ewtmeow 

offense from the PSIR, buttliat doesn't wipe it out ofmy memory." Tlds 

obsemtion underscores tlie p~baly danger associated with tl~e PSIR. 

Simply stated, it is a vehicle to provide tile judge with negative information 

about the defendant, regardlm ofwhether that information is 

true or can be proven. 

D. The Defense PSlR 

Most judges strongly reconmend that counsel Me a defense PSIR. 

One judge obsaved that a defense PSIR is the "most important tl~@ 

that a defense k e r can do for his client at sentencing." Co~~nsel has - 

control over the content. The judge is more likely to give his h~ll attention 

to a wrinen document than to a lawyer "talkingat the bench." 

Judges made the following recommendations with regard to the 

defense PSIR: 

Present it to 111e judge well in advance of 

the punishment l~ea~lng. 

Do not repeat the content of tl~eprobation 

~fecer'~ PSIR. 

Do not ailow the defendant or Ids family 

to deny his guilt. 

Present a sentencing plan, mahg clear 

what sentence is requested. 

The PSIR should be wtitten in the format of a sentenciug memomdum, 

with the following types of atiachn~ents: 

* letters from the defendant, relatives, employers, 

teachers, ministers, and friends; 

photos of Ute defendant showing Ids development from 

childliood to his present station in Ue; and 

documents such as transcripts, diplomas, ads, and 

certiacatcs that support the acl~ievements mentioned in 

the PSlR 

Judges are most interested in the following substantive evidence: 

the defendant's sincere expression of remorse, in whicl~ 

he accepts responsibility for his conduct and apologkes 

to everyone he has lmrt, including his family; 

past good conduct; 

post-offense rehabilitation efforts 

the ~ wms that Ule defendant conuuifted the offense;9 

Facts demonstrating that tl~e defendant can accept and 

discl~arge respon~ibllity;~~ 

millgating medid or psychiauicproblem; 

coopentian with law enforcement. 

B. The Most Common Wstilkes Of Defense Counsel, 

Defense lawyers commonly make the following inktakes in connection 

with the PSR 

lad Ute defendan1 to believe ti~st he will receive probation 

or a paaicular sentence;'l 

fail to advise the defendant that he could recebe a 

greater sentence than the prosecutor ltas offered or will 

recomn~end; 

fail to advise the defendant about aggravated the; 

provide incorrect advice regarding pmle eligibihty; 

fall to discuss sentencing with a judge who is amenable 

to doing so; 

fail to attempt to negotiate a eap on the sentenqlZ 

fail to know the sentencing pl~I!osophy of tl~e judge 

that type of case; 

fail to know d~efull extent of the defendant's background 

(rdting in not knowing about negative ioformation 

that could appear in the PSIR 01 not presenting positive 

inforoiation iu the PSIR); 

* fail to file a defense PSIR; 

ind~~de repetitious letters in the PSIR; 

fail to be present when the probation ofecer inte~views 

the defendant; 

22 VOICE FOR THE DEFENSE W7HWTCDM.COM DECEMBER 2 0DI

A JUDICIAL PERSPECTIVE ON SENTENCING lS5UES 

hil to prepare the defendant and his family for the interview 

54th the probation officer; 

dlow the defendant or his family to assert that he dd not 

commit the offense or to demonstrate a hd attitude; 

fail to r a h the defendant's statement before it is given 

to the probation officer; 

write the defendant's statement for him; 

fd to read the PSIR before the date of the punishment 

hearing; 

fidl to ffle wimn objections to in~dmissiblevidence or 

inaccurate information in the PSIR before the date of the 

pnoishmeut hearing; 

fail to luse a reasoned sentencing stmtegv; 

fail to present testimony at tl~e pudslunent hearing if the 

jl~dge wants to hear testimony, 

* fail to empJ1asiee the defendant's lesser role in the 

offense; 

fall to foct~s on the defendant's positiveallrihutesand any 

mitigating rircu~nstances; 

fail to present reasons that the judge si~o~ld make an exception 

for tlh p;uticuiar defendant (w11y the judge si1011ld 

asses pmbalion, not impose jiiiltiiue as a co~~ditlon ofprobation, 

or asses lrss time than tlu: prosecutor reqnests). 

THE PUNISHMEQ HEARWG BEFORF, THEJUDGE 

A. Whether To Present Evideilce 

Counsel must decide whether to present testimony at the punishment 

hearing where the judge has a PSIR. Piire of the judges interviewed 

nmt to hear testimony, one does not, and six believe tlut it 

depends on the quality of the Lestimooy. Connsel should askthe judge 

at the gully plea proceeding \'bether he wmts to hear tesiimony at the 

punishment hearing. 

The judges who wnt to 11ear testimony want to hear from only lhe 

defendant or a "very impressive" witness They do not want to hear 

&tlnlony that merely repeats the content of the PSIR. Counsel should 

cnll a few witnesses to present condse testimol~y. 

Counsel s1101dd ha% numerous witnesses present in the coortroom 

at the punislunent hearing, Counsel should introduce them to the 

court by imme, occupation, and relationship to the defendant; he need 

not cnll them to testify, especially if they wrote letters for the PSIR. TIE 

presence of these witnesses shows rel s~~ppo~t for the defendant; as 

one jndge obsemd, "Anyone can write a note." 

B. Whether The Defendant Slwnld Testify13 

Evay ludgewvants to hear h m the defendant1* One judge wants 

to hear from only the defendant. Nonetheless, the defendant should 

not testify unless he has been prop& prepared, has a goad attihide, 

and is capable of consistently telling the tn1th.I5 

The defendant nust admit guilt and accept responsibility for his 

conduct without "whining" or n~ddng escuses. He mosl demonstrate 

true ren~orse. He shonld describe what he has done to improve Ih- 

self since his arrest. Judges are looking for an indication that he considers 

the offense to be a h~ring point inins Me. They are most interested 

in determining wh&w he is sincere; % one judge ohewed, 

"How he says it is mucl~ niore important than what he says." 

C. 9pe.s Of Evidence To Present 

Judges want to hear the fobwing types of testimony. 

a "dynamite" witness (described as a high quality pelson 

who really knows the defendant and can convince the 

jndge that the defenclant's condnct was an abemtion);16 

the defendant's post-arrest rehabllit~tion efforts; 

a representative of a treatment progm if the judge is 

not fdar with that prognm; 

a mental hdth professional if tile defendant has a treatable 

psychological problem. 

Chanaer wit~~csses, includii family members, ~~sudy are not 

helpful. Tluytgpcnlly do not know the details ofthe offense, and many 

are discredted on cross-examination, particularly if Ihe defendant lled 

to them about the offense. They are okn too emotional, although one 

judge commented, "I'm often lenient for the family, not for the defendant." 

THE PUEWENI' HEARlhG BEFORE THE JURY 

A. Respondkng To The State's Evidence 

Counsel should try to exclude agoably hadmissible evidence at a 

heaing outside the presence of the jury 

Unadjudicated extlaneous oflenses may be inadmissible due to 

inadequate pretrial notice, lack of proof beyond a reasonable doubt, 

or remoteness. If an unadjudcated extmeons offense is admitted, 

co~msel should ignore it unless there is an available defense m evidence 

in mitigadon. 

Victim-impact testimony may be inadmissible on the grounds that 

the witness is not q~~difled (for example, the witness is a friend nther 

tl~w a relative of thevictim) or the testimony is nnd111y prejudicial (for 

example, testimony that a chUd "dreams about her dead father"). If 

victimin~pact testimony is admitted, connsel should not cros-examine 

the witnesses; it he does, he should be extren~ely courteous and cautious. 

B. Ilpes Of Evidence To Present 

Counsel shollld present the following types of evidence to a jury in 

mitigation of punishment: 

stable envLronment; 

dsdwntaged circumstances; 

good school record; 

good employment history; 

a tramnatic event that led to the offense; 

available programs if the defendant is placed oil probauon 

(for esan~ple, boot camp and substance abuse or 

sex offender treatment prog~ms); 

remorse; 

testimony froma probation officer that the judge istungh 

on probationers.'7 

The emotional testimony of the defendant's relatives niay have a 

greater impaa on a ju~y than on a judg~ It can be effective to show 

Ihe impset of the defendant's incarceraUon on his family Hmwer, 

counsel nlnst carefully prepare the witnesses for cross-examination.ls 

VOICE FOR THE DEFENSE YIWW.TCDlA.COM DECEMBER PO01 23

A J UDW PERSPECTIVE ON SENTENCING ISSUES 

C. The Most Common Mistakes Of Defense Counsel 

Defense lanyem comn~only make tbe following mistakes at a punislunmt 

hearing before a juy 

fail to have a reasoned sentencing strategy; 

fail to request a hearing o~ihidc llte presence of the jury 

to challet~ge the adnlissibility of unadjudicated extraneous 

offenses and vicUm-inqnct testimony; 

= fail to prepare lhc defendant and hewitncsscs for cross 

examination; 

Fail to He a motion lo preIrent !he prosecutor from crossexmining 

t11e defendant about the facts of the offense if 

he did not testify at the guilt-innocence stage;19 

fail to ask the defendant about acli coi~dition of probation 

on direct examination; 

fail to present all posime attributes of he defendant; 

* callwih~cssn without being aware of eveiytliing bad they 

know about the defendant; 

fail to coosider the in~plications of presenting "double 

edged sword" evidence, such as chug addiction and 

mental illness,wltich argt~ably demonstmtes future dangerousness; 

call he pl-ohtion officer to testify, 

fdl to object to the prosecutor's improper argumentq 

fail to anticipate and addm the prosecutor's closing 

argoment; 

insttlt tile july during ammation; 20 

!&I to argue tl~athe july should "assess a fair sentence 

but not be inan;" 

fail to show that counsel re;llly beliaes in and cares 

about the defendant 

I For e\mplc, onc formcr district ludge nas patimalarly hmh to qgmted robberj"es 

kusc he Lad k n mhbcd at gunpain1 Anothwfarmer dtatncl judgemas 

pmltfcdariy harsh m dmgdehbmy rases hmse a close fan* member lhrda serious 

drugpmblenl. 

2. For ewmpk, I determined thal aneludgegrantedpmbalion toseroffendersonly 

if the defendanl had entered n ser oRender treatinen1 pmgm and made submllul 

pmgm by the ume uisentmcing, that fudge imposed a pdson sentence in CIC~ 

me 

inrhich the defendanl aanempted to excuse hk conduct on Ule basis ha he \\ma substance 

ahuxr Instead ofa se\ otknder. I dciermloed that anothcrludge granted proha 

tion in mlodrntion l~a~dauglitw w s oulynhen thedchdanl had no prniousdmhal-related 

dnring comictiom; thnt fudge b~poposrd a prison xntcnce in a~rj rase in 

~rhlrh the defendmt hsd aptimDWl cornieuan. 

3. 1 suggesfed ZO yars ;%go that IlCClA compile a data bank of each 1udge.s sentences 

in PS1Rcr.a Perhaps same d*~ that d happen. 

4 The . i~~~usuatlrn~ll . not learn abut charem " that he been &mlncd or mulldin 

anacquitfat, or unad,udlcxled earanmu oEem thdl ranno! he prom hux, 

for cwale. a nNmw rtmm is unardablr. Hourrrr, bJ.3 iotonnaUon is rcadil~ 

mihble;o the lodge through 1hePSIR 

5. A prc plea 1S1Rnmynot be ~onamicd to a taulure case, bnt il rs n mnable 

altemdire in a mse h rhicll the bid ~wuld be lengthy, complex, or undulytnunlatic 

f01 the COmpfdi7anl. 

6 m bcketl Y. Slate, I6 SV3d 504 (Tm. App -Houston llst Disl I 2MX1, pel 

rrfd), the defendam contended lllat the iudte erred in wnsidchnxan unadtudhted 

c~lmmusofJense at thepuni$n~entsta~ein~enbxnceo~ru~ck~t~~d~~~re 

la prore 

hat hc mmttcd The hue rrw not pmprdy prmned for a p p e a l 

not refleet that thefudgcmled onan obj~tion, found lhnl the defendant cornmilled the 

7. Mmt judges caos(der &fen h m oroplo)rrs to be more imponant than letters 

from ~ciativcs, nhch they 5pkaUy ihsregard. %me judges do nat consider any tellers 

to be helpful, ns thqrnssume hat sonrewe m e the leuen for the defendant and his 

family. Other pdges consider the abspnce of kners a! an indtcalian that Ihcdehdant 

lacks support. I mommend that different "categories" of persons \\rife levers that 

counsel mlms lo ensure that thc content and tone mnpppriate h&re he prfseoe 

Ihrm lo the fudge. 

8. Judgps~mt lo knoarrbelherthe defendantis&(I,ingto change for Ihebet 

ter Counsel should recommend Ulat the defendant mler an appmpnlate tmlment pro 

gnmfmmediatclydter h!.imest, der th,mnrgulngal the puuisluuen1 hearing that he 

nffl seek trmmnl dhe k placed on pmbalion 

9 Judga rwt la know vhelher the conduct In question uas abeml. i haw 

mnl$ seen federal iudga be lenknl a1 sentendng to a battered ~ife ilehose husband 

made her heeome hnvhd in a dn~g canspirncy, a lcrna$erniw conmdttedmmal rob 

hedmaf~er ilis mother died and hc had to mom h m another state to liouslon, and a 

youmgmannithmic unusual psyholc@eal pmblemsrrho stole a lot ofpropoq 

10 Judges are ohen lmpreaed by a gwd schwl mrd, plntcipation in tnam 

spotis Pit shons self dixipline"); a g d emQI0)ment hislow ('You can Wll fibot a 

defendwtssattNude fmm hk~orkhistoq"~ andcommu~njinvalrmentdlhacl~t~llrch, 

chwitable orpdzation, civic .~taUon, or yottth group (udes the defendant hns 

mmmilled a m offense). 

I1 I mommend III~ minsel Ilax the hfendant sign a document for the fie 

reil~ti~g that, at the time ofthe guillyplea, nether the judge nor counsel hnd promised 

pmbon or ap&ular senlence 

12 HOII~PI, a rap could telegnph lo the~u~lgeihat 

dctedant con& thal 

thlsparlicular sentme nould he appmpdnte, ntoch may not hea goad idea if the 

defendant nmts a lmr sentence or pmbation. 

13 lhae ahsenstions dm apply lo a pudshnlat hearing before the jllw if the 

defcndmt hm pled gull$ Ulmher thedefendant shdd lest~bat the punishment hew 

lng If he has pled no1 guUly LD~IIPS stralegc canslderahons bqood the n9pc of ilds 

nlllrle 

14. Ilowier, the judge mot rampi lhedefendant lo testibnen though he pled 

@lly Carrollv Slac, 4ZSW.Y 129 (Ter Grim App 2WI). 

15. Om ludge obxlred lhat "the sentencegasup if the defendant scum me 11hen 

he mffia " 

16. Mmt judges consider (he defenbt's employr to be the mmt fmpotiant 161- 

nes, dier than perhaps lhe defeodanL 

17. Some judges beliw that it Is tw d e to cd i\ prabatlon dicer, as the proserutormll 

$piealiybareginl minhnize the mndillons dprohatlonan cmss exminatiw. 

18. Ihepmswntor~~Jl ~ptcdynsknh~t the defendant has fold thenmesabout 

the offense, and xhethcr lhe \\mess mould \r~nt someone ulw had mmiltcd that 

oftense zgdnslhim m arrurmber ofhis fandyto be pi& on pmhatioh 

19. Although no me holdsthat such cmrr e\;utination is lmpmpcr, some judges 

nSl not permit~lif counselob~KtS. 

20. Counsel should emphasizeany residual doubl ai to d l in S!dilg the juvto he 

lenient on pundment, espfflatlyifthe~u~dclibrmtedfor along limeat theguUt-inno 

oence $age Hmner, he mu be careful not lo c111icuc the juv for the con\icUon 8 

Ctrc~tlls, mrdl/I6' U~~~twiSfulesDistrirt Cmufs for the SontbPN,, Norllxrn, Fasfrn 

nnd IIWenI Dismas of Terns He IS fl l~einhr ofll~ellrne~icnt~ Barrtrsocinlfm~, 

1/I6' ~Wo,ral A&/OII of Crl11111nl Dcpm hri,wn, ibe A~neflcan UMn3 of 

Cr1111Inal .rage& I& Tmns Cr:srirmal Deforse Inrgsrs &~cfa/1011, and Ik 

ofnppmlswuld haw concluded tha he considered lhc eitcmmw.offensein msesslng 

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VOICE FOR THE DEFENSE WWW.lCDLII.COM 

DECEMBER 1001 1s

HOWTOEFFrnlY 

USEAMENTAL 

HEALTH EXPERT 

he testimony of q psychologist or psychiatrist is often the 

cornelstone of a criminal case pt unfortunately many 

attorneys fail to effectively utilke these critical witnesses 

similarly. There are several mot causes of this problem. 

First and formost is the fdure of the attonley to develop a solid 

workh~g knowledge of basic psydiological and psychiatric principles. 

Despite the critical in~portance of these discipUnes to the practice of 

Ialv, most attornejs oiaintain a hands-off attitude toward psychologists 

md psychiatrists. "Thepc the everts. They knowwhat to do. 1 don't 

need to know all that ps).d~ological n~un~bo jumbo," the tbioking ofien 

goes. 

This attitude greatly hampers an attorney's ability to effectively evnluate 

thecompetency of the expert for the specific case; and in turn, this 

approacl~ lih~deis the attorney's ability to not only prepwe the expert 

for warnination but dso eond~~ct effective cross of the stnte's rebuttal 

expel. 

A secorul related muse Is the use of the sme "defense frieodlp 

exycrt over and over again. The danger with this st~xtegy is that each 

time tlus tmsted expert testifies, tile "paper" or transcribed testimony 

on her gets thicker and thickec Soon, the prosenrtor is able to predict 

where the expert is going, to say nothing of having a libmy of 

the expert's prior teslin~ony for use in cross examhution. Tlds 

approach also results in choosu~g an e\pei~ based upon convenience 

mther than skill. 

The following guide will .wist yo11 in &ectively using mental health 

experts. 

I. EDUW mmsm ON BASICIV~XL 

HEALTH CONCBpTs 

The odds are that ym probably don't have the time or inclination 

to go back to stl~ool to get your Ph D. orM.D., so what do yo11 do 

A. ALL LAW OFFICES SHOULD HAVE A COPY OP THE DSM N 

Fi~st, a11 law dces should have a copy of the DSM lV (DJAG- 

NOSTIC hW SATISTIW MANUAL, FOURTH EDITION) published 

by the AIII~~~GUI Psychiatric PIVS in Wasl~ingto~~ D.C. and available 

at most major bookstores and over the hltemet 

(w~uru.npp~.corn) or at nmazon.corn. Tids is the "bible" of psychiatrists 

rrnd psycliologists. It contains wety recognized mental 

health disease md disorder and provides the format for making 

diagnoses. Study it, know it. 

B. THB NlBRNET IS A PABULOUS RESOURCE 

If ).ou want more infomuition on a particdnr disorder, and are 

likemost attorlle)smd don't have access to a medicallibrqtheinternet 

is a fabu~lous resource. The foUowing &fa bases, will provide you 

with eve~~tlihg you wed to hour It's a good idea to iosure that your 

wpm* knows about these databases as well far they provide a cxittd 

source of articles which can assist the expert in both resarching your 

client's problem and providing the c~ppert with reloant litemhlre to 

support his opinion. 

1. MeIIIne.corn (available on line through the National Jibm~y of 

hiedicine at turuw.rrcbi.nlm.nih.gau/entre+/qr~ei~~ - this is a free 

search on line hut the12 is fee for downloxding entire article; medline 

wn also be downloaded tl~rough I.e.d~Ws.) 

2. Psj~chinfaline.~~~~~ (available through npa.0t.g - fee to search 

and print a~ticles.) 

3. Psych\Veb at ~it~~~.ps~~~~uww.~~mhesonrce/Jo~~rna 

is alirtle 

knm~ 

but excellent cLaa base w'hicli semhes over 1500 national 

and intwnational psycl~olog~ and socid scieuce jomnds 

4. Norfher.wlighrs.eorn (good for obscure journal articles - free to 

search In11 pay for articles.) 

5. If you sobscribe to k&, they have a n11111ber of exellent search 

engines for medical articles. 

6, Both the Ame~tcan Ps).chologicd Associ~tlon, npn.org md the 

hnericm Psychht~tc Association, psj~cB.org contain a wealth of 

information on eveiyhing kom srticles about specific syndromes to 

etllid g~ddehes, (see discussion below in section on cross exmlination 

of slate's espcrt). In addition they also pmvide vnluable links to 

other sites. 

26 VOICE FOR WE OKICNSE WWW.TCOlA.COM DECEMEER 2001

HOW TO EFFECTIVELY USE A MENTAL HEALTH EXPERT 

C. SHORT RBADING LIST 

The following is ashort but informative reading listwhich will help inuminate 

some of the core mental health issues faced in a criminal trial. 

1. PSYCHOLOGICII 1IPAUMA BY BESSEL VAN DER KOLK 

2. GUfLTYEYRE4SON OFINSANITK A PSFCH&4TRISThWLOKBS THE 

dIIADS OF KILLERS BY DOROTHYlEWIS. 

3. MLTRBATBD CHILDREEN;. EXPERlENCl$ BRAIN DBVBLOA148NT 

AND TmNBXT GENERATIONBY BRUCE PERRY 

4. THBPSYCH1ATRISTASEXPERT WI11YW.9 BY THOMAS GIiTHBU 

D. PAMILIARIZB YOURSELF \YITH THE DISORDERS 

While a defendant's problem's range from A-2, it is perhaps most 

in~porhnt (especially in the mitigatiot~ phase of a death case) to thoroughly 

familiarize yourself with the following concepts: dety disorders, 

past-traumatic stress disorder, dissociative diso~de~s, borderhe 

personality disorde~; bi-polar disorder, schizophrenia, malingering, 

narcissism, paranoia, mti-social personality, collduct disorder, oppositionalldefiant 

disorder and psychopaths 

II. GETTHEIUGHTMENTAI.~&YPEl@ 

\Vhile many meld health professionals will maintain that their job 

is purely objective and deny that their sex, age or race is relevant to 

their elprtise in a particular case, experience demonstrates that the 

"fit" between the doctor and the client is extremely important. Thougl~ 

testhg is putatively an objective process, the overail mental health 

evaluation is often highly subjective In fact the reliability of an expert's 

Bnal opinion is inextricably related to the trust the client has for the 

expert, for the more the client trusts the expert, the more opw and 

llnnest he or she uill be with her. Be sensitive to these t~ctors your 

ultimate choice. 

When making a decision to hire a mental health expell, there are 

seveld ti~reshold conside~ntions. 

A. KNOW THE EXPERTS CREDENTIAL$ 

Does the expert ha~e the requisite credentials to examine and emlunte 

my client For example if your client is under the age of 18 then 

your expert should have experience treating child~,en and ad~dolescents. 

Or if your client is clia~ged with scmal assault, ask: does Le expert 

have experience with this populationk~d if he orsl~e does, how many 

sexmrl perpetrato~s llas she evaluated or treated 

B. KNOW YOUR CLIENT'S NEEDS 

And depending on the dlarged offense and the zge, race and sex of 

my client will he or she be more responsive ufith a male or female 

expert, a younger or older expert If my client is Africns-American, will 

she respond better to an Acrican-American psychologist as opposed to 

an Anglo 

C. KNOW YOUR EXPERTS EXPERIENCE 

What kind of experience does your expert possess Is he a professional 

forensic expert with little clinical experience Does she do any 

research artd writing in the speciac area concerning your client 

The knee jerk reaction of many attorneys is simply to get a psychologist 

or psychiptrist U~IIO has courtroom experience. It's nmch easier 

going back to the tried md tlw, the person u~ho knows his way 

around the couttroom rather than retain somebody out of the tdi- 

tional mold. It is however, the well-rounded expert, the one who teaches 

at the medical school or conducts research or writes for scholarly 

journals or conducts continuing education seminars who will be more 

effective in engenderhg the jury3 respect and who will ulhtely be 

better able to 11de a scorching cross aamination. Experts who have 

research and teaching experience carrywith them into a courtroom an 

air of objectivity and respectability that the average "courtroom" professional 

simply does not possess. 

For example if your client is a woman charged with killing her 

cl~Ud, you wI!J be much better off with an expert who has not only evaluated 

similar defendants in the past hut is thoroughly famllar with the 

research on infanticide (shaken baby syndrame, ek.) and has written 

journal atlicles on this population of women. Or if your client is a 

teenager, is your psychiatrist hoard certiaed in child and adolescent 

psychiaflyl Has he been the chief resident at a children's psychiatric 

facility Does he have an appointment at a medical school where he 

teaches child psychiatry and writes arllcles for peer reviewed jo~rrnals 

D. DONT SIMPLY RELY ON PSYCHOLOGISTS AND 

PSYCHIATRISTS. 

Wlen making your decision among experts, include in your consideration 

tile wide lange of professionals who work in the mental 

health. Consider for m ~ple those who haw the PhD.'s in social work, 

nutsing, pqchopltarmacology and neurobiology. And in certaJn cases, 

most notably child ab11se and domatic viole~~ce cases, consider using 

people who don't have a PhD, or M.D. but rather lime a master's 

degree in social work or psycluatric nn~sing. While these latter groups 

of individuals certainly don't have the prestige of having "Dr!' before 

their name, yo11 w i l l often Bnd that they have mw day to dq clinlcd 

experience with battered populations than a PhD. or M.D. 

E. CONSIDER USING AN BXPBRT WITH LITnE 

COURTROOM EXPERIENCE 

Finally, consider using an expert who has little or no courtroom 

experience but mple research or clinical esperlence. These are in hct 

my fawrite mental health expels. Using someone rvho Bas never set 

foot in a courtroom or who 12rely testiOes naturally requires more 

nark to get d~em ready for trtal (e.g, cxplahing the legal iss~~es asuvll 

as basic courtcoon1 protocols, etc.) thau an experienced courtroom 

expert, b ~t mch novices me Lumune from the very effective attack that 

tiley are defense hacks. 10 the avw;ye juror's eyes, such expert's nonforensic 

experience imbues them wit11 a degree of objectivity that the 

courtroom veteran could new fiave. 

III. m ~ m m p s YOURBZ;~I~V~HXPERT 

m 

The 51st rule after you bring your mental health pe~son 011 hoard is 

new take anyihihing for g~xnted concerningwht the mpert !wows or 

for that matter needs to do her evaluabn. 

Before the expert does her Brst it~terviewinsure ymt meet with her. 

It is not unusual for an attorney to retah apsychologist over the phone 

and never meet with her m~til after the evaluation is completed, This is 

a mistake. Yon ulll nia~imi7e the benefit of ).our expert's impact by 

meeting Erst and worhg out my poter~tial problen~s early on in the 

case. 

Dnring his meeting present a detailed account of the facts and ask 

the expert what documents she needs prior to going to see your client. 

These documents typically include any statements your client has made 

(if there is an andio or videotaped codesion inlclude those ~s well), 

VOICE FOR THE DEFENSE WWW.TCDLA.COM DECEMBER 2001 27

HOW TO EFFECTIVELY USE A MENTAL HEAlW EXPERT 

witness statements and the coroner's report. If any of these are not 

adable at the time of the first evaluation meeting, insure that the 

expert gets them as soon as possible. 

At this juncture it is also critical to inquire of the expert what tests 

shewill perform or if she willnot be performing the tests (psychiatrists 

@pically have psychologists do the testing) the identity of the person 

who will do the testing. 

Also ask with whom else she mts to speak, e.gg, famlly members, 

Mends, etc, so yon can begin setting the wheels in motion to zmge 

the interviews. 

During this me-g resave some time to not only review the 

cllalarges but just as impo~lantly the law governing the case. This latter 

effort wiU assist the expert in foeusing the evaluation on tl~elements 

wllich need to be proven to establish a partic~~lar offense or defense. 

You might also consider copying the relevant statutes and case law for 

th expea. 

Following theexpert's first contact with your chent deternune how 

much more interview time fhe expert needs as weU as the need for any 

further testing or evaluation. Yo11 might find for example that the psychologist 

wants to have an E.E.G. or PDT-SUW conducted on your 

dent. 

11PL41 

N; P ~ ! G F O R 

Attorneys ofiei~ say, "It's not my style to prepare qucsUons all& of 

time. I let the expert know the geneld areas I'U question him on and 

go from there. I don't want to do anything more because I don't want 

my examhution to sound rehearsed." 

Though this may be a prudent strategy for cerfdo lay witnesses, it 

is dehitely not m appropriate my to prepare an mentalhealth expert 

for trial. The life of a good mental health expert is b11,uUt around attention 

to detail. In my work with psychologists and psycluatrists dl 

around the nation their one complaint about attorneys is the lack of 

prepamtion. More than one expert has said to me, "The attorney told 

me, Don't wor~y about the direct. I have your report. Just show op in 

murt and we'll go from there." 

If you want to make the expert feel more conlfomhle in court, even 

one who ha tesUEed a l~undred times, pfepae specific questions 

ahead of time and go over the questions with the expea. You may feel 

that a detailed conversation is sufficient, but it rarely is. The work that 

yon put in to ddt the questions dl gdy enhance you expert's trial 

performance. 

After reviewing tile questions, ask the expert for any recommenhtions 

for new questions or q~~estions he or she wodd ask differently. At 

this juncture be sure also to prepare the expert for cross. Inquire not 

only of yourself but the expert as to what she beliew to be tile weak 

h~ks her testimony. What aspects of the evaluation or testing give fodder 

to the state for cross examinabonl Pose specific cross questions to 

the expert, or better yet @possible, have a colleague cross the expert. 

It is actually my practice to spend more time prepzing the expert for 

crass than direct became it is on cross that the expert can really shine. 

Being able to take a prosecutor's q~~estion and hlrn it around to benefit 

the defense is the hallmark of a great mental health expert. 

K EXAMINATION POIhT8R.9 

Iiiefy direct is different however the following suggestions will assist 

you in organizing fhe testimony of your mental hdth expert. 

1. Insure that you do a thorough review of your expert's credentials 

emphasking: any research (especially government 6unded) or writing 

experience; any editorial experience for professional journals; any 

work he has done for the prosecullon and the nnmber of patienWduafions 

he has done throigho~~t Ifis career. 

2. Have the expert conduct a "mini-class" for the juty on the scientific 

bases of the particular mental disease or defecvemotional or psychological 

problenl suftered by your client. You want the jury to know in 

very clear terms that it is not only your client who suffers from schim 

plnenla but it is a disorder formally recognized by the greater scienuic 

comnlunity and tens of Ulousands of people suffer from it. In making 

your point, especially if the doctor is going to rely on the DSM IV, 

where possible, make a poster of the DSM-N disorder and use it as a 

visual ald to guide the expert's testimony. 

VI. CROSS EXAMINMGA STATB-RBTAIAIN MEW HEUi% 

mBRT 

1. Request the state to give you the expelt's resume as soon as possible. 

After receivingit immediately send it over to your expert so she can 

help you to evaluate it. For example, if you have a case involvtng sexual 

abuse, then you can discover vely quickly whether your expert has 

any experience in the area and the extent of that experience. You will 

often find titat the state hires rebuttal experts with very little spdc 

expertise. They are often times gene~d practitioners who have no 

problem opining on any matter wluch comes before them. 

2. It the state refuses to give you the rEsumi! until trial, you can find a 

wealth of background information on the expert by entering her name 

in a variety of searcll engines. In addition to the ones listed above, I 

have &ays found that Nexis, the news search data base conlpanioll to 

kxis is very good for discovering prior cases in wi~ich the expect has 

tesaed, any out-of-coua statements he lus made (including any 

media appeaunces) and any articles or papers he has written or 

speeches he has p~rsented at professional conferences or legislative 

Ilearings. Of course after you receive the resume be sure to follow the 

above steps in reviewing the expert's credentials. One of the great 

untapped sources for cross examination is the American Psychological 

Association and the American Psychiatric Assmiation ethical guide 

Hnes. They can both be found on the web sites mentioned abase. The 

import of finding that the opposing expert has violated an etllical 

guidehe mot of course be underestimated. 

3. Where possible obtain several emples of the expert's prior testimony 

These documents can provide a wealth of material for crossexandnation. 

It U I expert ~ is a "pmksional expert" a san~ple of her 

testimony can usually be obtained tiom the state appellate defender 

office or any attorney who regularly does appeals. 

4. if the state's motion to have your client examined by their expert is 

granted, insist that you have the right to be there to advise your client 

on my privileged matter and demand that the evalnatlon be videotaped 

or andiotaped, videotaping of course being preferable. The taping is 

critical because it can be eval~~ated by your experr to determine 

whether the inte~view/evaluation wvs cond~~cted appropfiately 

28 VOICE FOR THE DEFENSE WWW.1CDLA.COM DECEMBER 2001

HOW TO EFFECTNELY USE A MENTAL HEALTH EXPERT 

5, Use the data bases discwed above to disewec mtrch hronsistent 

will! tltc opposing expert's opinion. Moreoser ask par mental 

hcalth expelt for pohtes on wd~at to ask the state's rebuttal expert. 

This seenlslike an obvfous usc of).our expat, but it is rema~kible how 

iufiequently defense attorneys seek such advice from tl~eir esperk. 

WL I.MLUSION 

Psychologists and psychiatrists can have a dmatic effect on the 

judge and juvs peiceptiou of yorn client. But thcsc experts are only 

as good you preparc tliem. The more you make an effort to undeesta~~d 

their disciplines sod educate them on the facts and law of your 

case, file better dtepuilll beable to assist you. H 

CHARACTERISTICS 

OF AN EFFECTIVE 

MENTAL HEAlTH 

CONSULTANT 

.. . 

consultant for CI'h~nd eases We recommend looking far 

smrn milin cl~amterisffcs when you cbnsitler hi~tng a consultant 

for your casx 

MEMORIALIZES 

CHARLES BALDWIN 

QUlN BRACKETT 

JACK H. BRYANT 

PHIL BURLESON 

WARD P. CASEY 

C. ANTHONY FRILOUX, JR. 

EMMETT COLVIN 

KNOX JONES 

GEORGE F. LUQUETTE 

DAVID A. NIX 

DON R. WILSON, JR. 

GEORGE ROLAND 

RICHARD W. HARRIS 

Pleos~ consder a memorial g~ft to TCDLEI in the name 

of Ihse or other TCDIA mmbrs. Since TCDIEI is o 

501 (c)l3l organimtton, yeur g~h 1s tax dedvchble. 

%nd your donation to the TCDiA o h at 600 W. 

13th Street, Austin, M 78701. 

1) Expertise the ea of fan*theo~y aud a biopsychosocia1 

systems orkntatio~~. (George L Gugel, 2'' Cli11icrrl 

ilppliefltion of the Biops~'chosocialApp~'~nch, 137(5) 

AmJ PsyclIIahy 535-43 (1980).) 

2) IkpeMie 81 detecting nglddl~ood twma and a clinical 

undersa~~ding of l~owit affects pelaorxs later in life. 

3) 111-depth background h 1mman development ~rsearch 

and themy, almg wid1 n pmclicd knowledge of psi. 

cbs~pathology and the ability to "trmslate" this specidid 

knowledge far bypemns. 

4) Understands 11uman bcha\+or as pu~~~oscful and sees 

wen violent belmvior as often an attempt to meet crises 

and to salve problems. 

5) Anh~terdlscipli~lary orientatio~~ and an n~nderstanding of 

the expertise of me~itd hd1 profession& lsonl dlsciplines 

other than hiher o\vn. 

6) Elljoys worki~~g with anorne)~, investigatotots, and pade- 

&, and understands and appreciates legd etlilcs as 

wellas the c'hulnd justice system's%l~IIng of the ad~ersaid 

process. 

7) Peri~aps most criticat Sea the client as ip human being 

who is ultinutely camprehensible md rlesen$ng of the 

best mental hmltb assisfmce and advocacppossible. 

Clark, Veltkantp, Mooahan, The FrPl.ienc1 Umnmked 

De~doping fhiMenffl~HenlthDinle~isions of theDefens, 

ABA CeinII~~alJustlce, Vol. 8, Xo. 2 (1993) ;it 61. W

Supreme Court 

The Court hm~de down no opinions in Octobe~: 

OnSeptember 25,2001, the Court g~mtcd cea. inATfZ\T y. IWGh\W, No. 00-8452, another cleat11 

pendiy case invol\ug excc~ition of the n~entaUy rvtardcd. The isue presented is as follou~: 

Does the execution of menfally ~.etxded individul co~nicted of capitd crinles violate the 

Cotlstihltlon's Eight11 tln~endn~cnf prolubitioi~ against cmel and unusnd punishn~ent 

011 tl~al same date, l~onre\~er, tile Court dso dismissed as in~providently gmtd the petition io 

IWC~RITR I< A'ORTH OIROUW, No. 00-8727 wl~ic had been gmltedin Febn~a~y 2001 to resolve he 

same issue 

Fifth Circuit 

6'"'3 AblENDMBm RIGHT TO COUNSEL VIOLATED: USA u. MARILF, No. 99-30549 (9/19/01) 

COIIII rccessed twice while defe~~dant as testifjing~ Once MU for the m~ing, and the other was over 

the weekend. Pilor to each recess, court instructed dcfen~lmthat he could not tdk with, or confer wit11 

his lavers Court holds lhal violated defendant's ~ 6% an~endaent ~fghto counsel. Cou~t dso holds 

defendat~t did not wive error, wen U~ough he did not spcciBcdlyob]ect, by indicating he wanted to talk 

with defendant during the mess. 

ILLEGAL DIXIWION EOLLOWlNG TlUFPIG Slop: USA u. VALDBZ, No. 00-50751 (Y21101). 

DECISIONS I 

REPORT 1 

~efeniLmt \'as stopi~cd for a11 eyjircd inspection sticker and Ulegd u~inilow tinting. Follorring stop, 

officc1'determined regist~ation sticker \vas dd. He tl~en cl~ecked the tint, md determined it m not iUegd. 

Before checking the windou~ tint, office~ took defendmt's license, and requested a check for will'- 

rants, as well as crimind Iustoly. He then zked dcfendantwhethcr he had my firam~s, whicl~ he did. 

\Vl~efl Be c~iminalhsto~). check came back, it did not sl~ow nl~ether defenda~~t lud convictions for misdemeanors 

or felonies. ORcer asked defendant ifhe had afelony cowiction, md cleiendant replied that 

IIC did. He subsequently takahen into custody for illegal possession of a fiream hy a felon. i\t hearing 

officer testified that he did not ro~rlinely req~est erinlind Iiistoly checks, but only did so u~llea he want 

to knou~\vl~o he was dealing with. He also testiied he la11 the cl~eck to determine if Le defendant was 

beii~g trnhfol. Court l~olls ofacer in~permissibly extended tl~e scope of the stop. 01xe oflicer deternlined 

tl~ete um no 11xfEc violation, there uras no further reason to detain the defend an^ [NOTE. This case 

probably hinges m the officer's testimonytl~at running a crin~inalilstov check is not routioepmcedure. 

Wcre it is routine, Judge Ga~ood io a concurring opinion suggests thcre will be no constitutiot~d violiltion 

1 

N~IVER OP VENUE CLARIFIED: USA u. C4RI(BOh'-PHL4CIO, No. 00-50362 (9/19/01) 

Cou~l addresses mld attempts to resolve cot~flicts concerning when the issue of 'enue is unlved. 

Wl~ere lack of venue is apparent ~IVIII the cl~arging iostn~ment, the issue is waived unless a pre-trial 

objection is made. Where the indictment pmperly alleges wme, and venue becon~es an issue during 

trial, objection cw be made at close of go~ernment's case. 

EXCESSIVE RESmTUTION ORDER: UM u. CU.&iT, No. 00-41360 (9/18/01). 

Deknbt was ordered to pay$250,000.00 over the course of tiis ti~rec year term of imprisonment 

a~d tl~ree )ms of supelvised relnsc. At the time of the offense, uw making $39,000.00 pm year, md had 

mnhh~~al mfs To repay relitution nould qul~r! pa)nlents of at lmt $41,000 per )mr. Court hold Distdct 

Coud abused its disnction in nlte~ing a restihtlion order which defenclm~t could not comply uith. 

30 VOICE FOR THE DEFENSE WWW.TCDLA.COM DECEMBER 2001

unwilling lo consider all evidence in determining the intoxicalion 

issue. The State'sPDR \vas gnnted to deter~ninewl~en avoir dire queslion 

calls for an improper commifmcnt. 

Held: For a conu~libllent a_~estioa to be proper, one of tile 

possible answers to that ouestion mast eivc rise to a valid 

cliallenee for cause. A question is a comsil~~ient queslioa if 

one or more of the possible answers is that the prospective juror \voould 

resolve or refti~i fro111 resolving an issue in the case on tl~c basis of 

one or more facts cont~ied in ll~e question. Esanples: "If the viclini 

is a nun, could yo11 be fair and inipartiC!" I\'NI$O, 80W482 (CCA 

1991). This question is OK because tlie juror conld properly consider 

that the victim's status was logicallp relevant to the issues at trial. 

Howeever, "Could you consider probation in a case \diere the victim is 

a nun is a conimilnient question because the juror is asked to say 

nl~ether he would refrain from resolving an issue in the cae (probation) 

based on a fact in the case (the victim is a mm). In ~Ilmld~ix, 

862//590 (CCA 1993), CCA lield proper a question asking wlietlier a 

prospective juror could consider probation in a murder case in wl1ic11 

a child had died, relying on i\'rrr~Jo. Howevex, CCA now l~olds that 

illaddiix \\%s \r8rongly decided, and produces inconsistencies in precedent. 

Tl~erefore, it is expressly over~uled, along vith any otl~cr contra~). 

decision. After further discussion, CCA sa)s the inqui~y for 

improper commitment questions has hvo steps: (I) Is the queslio~~ :I 

com~~~ilment question, ad (2) Does it include facls-and only 

facts~hat lmtl to avalid cllallenge for cause If the answer to (1) is 

)PS and tlie answer to (2) is no, then it is tui improper commnitn~ent 

question. 

Applying part (1) of this test to the question here, CCi says it is a 

conuiutment question because it ash wl~etlier the prospective juror 

would resolve the issue of guilt against the defendant if the jumr learns 

a certdn fact - tlut defendant had reh~sed a breath test. As to part 

(21, tlie facts in llie question do not lead to adid ci~allcnge for cause 

because a juror may pcm~issibly presume guilt froni suc11 evidence. 

Tes,'I'~nnsp.Code 3 724.061 pm\'ides that :I defendant's refusal to take 

a breatl~ test is admissible in c!~idence. Absent slatuto~y direclion, a 

challenge for cause based on sufficiency implications of an item of elidem 

would be inappropriate. The question was improper because it 

would not le~l 

to a valid cl~allenge for cause, tl~s 

trial court's refusal 

to dlo!v it mu correct. 

The majorit); in a 2-page footnote, expends much effort in severely 

criticizing both dissenls for niaking "u~isound argumeals" and missing 

the point. 

Keasler Concurrence: The decisio~~ to overlule illiiddiix was 

correct. Howevel; l\l~~~lfio sl~ould also be ovecn~led. Because "litigants 

and trial courls are lefl in utter confusion, never kno\vhig wl~ell~er tl~c 

questions are proper or not[,]" CCA sl~onld ~oake a bright-line rule 

that no fact-specific questions of any Iund sl~ould be allowed at wir 

dire because the do notlung other tl~an conmil the venire. 

Price Dissent: "I don't get it. I cannot fathom a reason-nmch 

less n principled reason- for tliere to be in voir dire practice such a 

disparity behveen ciril cases and criminal cases." The purpose ofvoir 

dire is not only to ferret out jliro~s u~lio are cl~alle~~geable for cause, 

but also to mke intelligent use of peremptories. Tlus opinion allows 

parties to exercise peremptories but does not require judges to allow 

the to ask questions for intelligent esercise of peremptories. Ciril litigants, 

in wluch only property is at slake, hw.e greater rights to question 

potential jumfi-and t1111s a greater right to a fair ant1 imparlid 

juq-than a crimiual defendant wliose liberty or life is at stake. 

Jol~nso~i Dissent: There is no difference behveen tl~e queslion in 

tlus cxse, and the hvo most commonly posed by the Slate: "Could you 

find someone guilty on the testimony of one witness" and "Could you 

find someone guilty on circnmstantid evidence alone If these questions 

do not ask the jmy to commit, then neither does the question at 

issue. (Notably, KeUer's lengthy footnote n~cntioned above faults tlus 

dissent because she says these hvo questions are improper.) Also, the 

question at issue here is just tl~e sort of question u~l~icl~ may l~clp determine 

wl~etller to use a peremptoq! It is an inqui~y into tile prospective 

juror's attitudes and beliefs about tl~e defendant's exercise of a 

choice. "\\'oald the nizjority take the same posilion if rlie question at 

issue were, 'V011ld you presume someone gl~iity if he or she refused to 

make a statement to the police 1 would hope not." 

STATE NEED NOT PROVE PECUNIARY LOSS TO ESTABLISH 

CUSS "A" CRIhllNAL MISCHIEP: ARTLRlO SANTM u. Stnte, 

No. 1780-00, i\ppellant's PDR from El I'aso Counly; Atnrmed, 

10/3V01; Ofiense: Crinlinal hliscl~ief (Class "A"); Sentence: 180 days 

jdl + $1000 fine (probated); COA: (AT -El Paso 2000); Opinion: 

hleyen (unanimous) 

Appellant was prosecutetl under TPC 3 28.03 for stealing about 4 

)'IS wortll of electricity from tlie El ilso electdc conlpary by using an 

illegally connected metec ARer this Illeft wvas discovered, he agreed to 

repay the utility an initial pa)~iie~it of $1458, and 20 addiliond installments 

of $200 would be added to lus montl~ly ~tateme~its. There uras 

no evidence presented at trid to show whetl~er\ppellant was in cornpliance 

with tlus agreement, or wl~ether he l~ad paid the debt, partial- 

Ig or in full. PDR was gmted to delemine: (1) diether the evidence 

uras sufficient without a sl~owing of a pecunia~y loss; and (2) wlictber 

there 1s a fatal variance behveeeen the infornialion and tile proof at 

trial. 

Held: Under 6 28.03. the prosec~~tion need not prove a 

I~~I~~IIIIIII pecut~iat. loss to punish cri~rinnl mischief as a 

Class "A" misde~ueanor under s~~bsectio~i fbM311B) because 

. of the ~articalar col~duct targeted bv tl~at sobsection. llppellant 

was prosecuted under 9 28,03(a)(2), u~luch makes it an offense to 

intenliondly or kno\vingly tamper with tangible property of the ownel; 

and causing pecuniary loss or substa~~tial inconvenience to the owner 

or a third person. Subseclio~~ (b) (3) makes it a class "Pif the amount 

of pecmiia~). loss is behveen $500 a ~d $1500 or "less than $1500 a~id 

the actor causes in wl~ole or in part, impaim~enl or istem~ption of. . 

. public water, gas or power supply, or other public se~vices, or caus- 

es to be diverted . . . in any manner, inclmling installation or removal 

of any de\ice . . . public water, g q or power sopi~ly" Baing its con- 

stmctio~i on the plain language of the statute, CCA l~ol(ls that the statute 

allows a conviction for Class "P criminal ~iuscluef if the State sl~ows a 

pecunia~yloss of $500 to $1500, or if die pecuniat)' loss is less than 

$1500 and tllere is substantial inconvenience ns described in 

(b)(3)(8). Tl~e legislature proscribed hnlpering with a public utility 

as conduct hannful in and ofitselt The harm cnused by tlint contluct 

is significtx~t enougli that if the State caa prove either substantid incon- 

\enience or peconia~). loss, it can punish the conduct more l~a~sl~ly 

than it can ordina~y criminal mischief t111t occasions a loss of less than 

$1500. Tlie evidence ~vasufficient. 

Held: Any variances between the infor~nation and the proof 

3% VOICE FOR HE DEFENSE WWW.lCDLA.COM DECEMBER 2001

SIGNIFICANT DECISIONS REPORT 

tinle it hadinformed 1un1 he would have to submit hfmuation relevant 

to BPP's conside~ntion. Reliefis granted. BPPis ordered to again consider 

Applicant for mandatoly release and provide ldu~ with tiruely 

notice that such consideration will occur. 

KeUer Dissent: Altl~ough Applicant has proven that tlre hearing was 

not held w11en he was told it would, he 11% suffered no 11arn1 becanse 

he has not shown 11ow this diseceyancy deprived him of a meaningful 

opportunity to 11e heard. 

Wonlack Dissent: Because Applicactt seeks relief from an admillistlntive 

decision, mdnot lelief from a felony jodgment, his writ should 

be dismissed. 

FORMER VERSION OF "HATE CRIMES" STATWE HELD 

UNCONS1TIVJTONAL: EX P m MICh5UL KEITH BOYD, No. 

74,121, from Ddas County, Relief Granted, 10/24/01; Offense: 

Agg~mted Assault; Sente~se: IXe; Opinion: Holcomb (una~~imoss) 

ARer Applicant \s found guilty by a jury of a second degree 

offense, the trial co~rrt entered an IImativefinding (~~nder thefonner 

ve~slon of the "Hate Crhnes" stahlte, TCCP 42.014) that he had selected 

his victim becatwe of bias or prejudice against a gcoup ofuWt the 

vicUm was a member. me punisluuent mgc was thus increased to 

that of a hst degree (see lower TPC $ 12.47) and the ju~y assessed a 

lite sentence. COA &rmd in anunpublisl~ed opinion, Appl~cant filed 

apose wit, atg~dng tint undcrA@mdi u. ~VewJerseJ', 530 U.S. 466 

(2000), he was denied due process when tlte issue of bias or prejudice 

was subtnitted to tl~e trial court, md um harmed because the 

ailirmative hding ilUouzed the jury to assess a Me sentence for a second 

degree felony 

Held: TCCP 42.014 and TPC 6 12.47. as applied at 

Applicaut's trial. usere unconstit~~tional. CCABrst detwnhes that 

Applicant's claim is cogniable on habeas corpus, even though presented 

for the first Ume, because t11eAppmndi clain~ was not avdable 

at lime of trial. He is thus, not baned from asserting the claim at trial 

or on appeal. Addressing the merits, CU andogizes to Appreudi, ia 

rvhcl~ tile Supreme Court shwk douv~ New Je~scy's hate crimes 

statute. The New Jeney statute perm~ned the July to convict tbe defendant 

of a seco~~d dcgrce based on a fu~ding tbat he possessed a prohibited 

weapon. It then dourd the judge to inpose punishment for a 

Erst degree if the judge faund by a preponde~nnce of the evidence tbat 

the defendant's purpose for possessing the u7eapon ww to iutin~idate 

tlw vfctim on the bnsis of a partic~lar cl~aracteristic. Sup~rmes held 

tbe statute was u~sonstitutio~~al hecausc the state legislah~re had 

~wrovel from the ju~y the assessment of facts that increase the punislunent 

imgc, uhich must be proven beyond a rcdsonable doubt. 

Similar18 the formerve~sions of the Tcxas statutes cited above removed 

from the juq tl~e assessrent of a fact - that Applicant chose lus victim 

because of bias or prejodke - that increased the pewlty nnge to 

w11icl1 Applicant vZas exposed, thus violating dm process. This violation 

hiu'n~ed Applicant because it etu~bled the jury to mess punis11- 

ment beyond the presc~'~bed s@h~to~y m&\in111m for a second degree. 

Relid is granted. The sentence is vacated, and the case is remanded 

for R new punishment hearing. 

Death Penalty Opinions: 

JUAN MARTIN GARCIA r. State, No. 73,804, iron1 Harris Co~mly; 

Aflkmed, 10/03/01; Opinion: Holcomb, joined by Keller, Mepen, 

Wonlack, Johnson Kcasler Hewey & Coclunn; Price joh~ed jodgment, 

but not opinion. 

Pacts: Appellant a~~d his three hiends we~v on a "crin~e spree" 

\\h Appellant shot and killed the victin~ wide llempting to rob him. 

He does not cbdenge s~rfficiency of the evidence to sopport the conviction. 

Ineffective assistance of cou~~sel for elicitiug dm~~agiug tatimnny 

during pu~~islu~~cnt: Counsel elicited from lus expert, a clinical 

ps).chologist, testimony that Appellant co~~tn~ds "tacitly asked the 

ju~y to co~~sider lace N I ethnic ~ stem@& in its dete~n~ination of 

future dangerousness to society Among otlter tlungs, the expert tmi- 

Bed on direct that race plays a role in dangerousness, and tl~among 

dangerons people, minorities are over-represented in the so-called 

dangerous population. He also testified about how the prison controlled 

violent ion~ates. Appellant is llispauic 

Held: Aeyellant has not shows Illat counsel was Ineffective 

bemuse his questioning of the expea ma lrave been strateeie. 

By this mpcn's testimony 11e may have been t~)ing to (1) place before 

the jtny all factors it n~igl~t use against Appelimt, either properly or 

improperly, in its assessnlent of future dange~usness, and (2) persuade 

the jury that despite dl those negative facton, Appellant would 

not be a fuh~re danger is prison because the prison sptenl llad procedures 

and techniques in place to control or eliminate Ms tendency 

towd violence. The State had already p~esented evidence of 

AppeUant's \iolent criminal reford. Thus, CC4 cannot say that COUIIsel's 

co~~d~lct u2as not trial strategy. 

Insufficient evidence to support firs( special issue: State inaoduced 

e\idence of Appellant's long and violent criminal I~Isto~y, WIIMI began 

when Ire committed tbe offense of ten-oristic threat at age 11, He committed 

seved aggggnvated robberies before and after commltfing the 

instmt offense, as well as hvo attempted capitd mnorde~s and anmault 

on a jaiJ innlate u4de audting trial, 

Held: The evidence was sutnclent to support the Arst special 

issue. Given his ehtensive crimind lustoq a mffonai ju~y could 

haw concluded beyond a reasonable doubt that AppeUmt dubited a 

dangerous abermtton of cl~a~ncter and that he was essentially incorrigible. 

No cllarge nu extraneous offenses: Tbe trial court did not 

charge Ute jmy at puuislnnenl that extralleous offenses mnst be prnveo 

beyond a reasonable doubt. 

Held: ll~e trial cowt did not err iufniline to eive the extm 

aeons offense cbmee. So long as the punish~nent cl~arge properly 

requirrs the State to pme the specidissues, otl~er than the mitigation 

issue, bepnd a reasonable doubt, there is no unfain~ess in not having 

a burden of prnnf inst~uction concevnlng exhxneous offenses 

PARYION EDWARD WARDRIP v. State, No. 73,671, fr0111 Wiclfita 

Cou~~ty; tWwmed, 10/03/01; Opinion: Per Curiam; Keller joins opinion, 

but concurs in g~*out~d one. 

34 VOICE FOR THE DEFENSE \HWW.TCDMICOM DECEMBER 2001

SIGNIFICANT DECISIONS REPORl 

i 

I 

ted in endence and playd for tl~e jury. On he tape, Appellant could 

be heard telling Johnson that IE wanted the witness "take11 care oP' 

and that he had already paid mother inmate to kill hec Among other 

things, he also sl~owed Jol~nson a map to the witom' home, gave a 

descriptioo of her house a ~d mailbox, and promised to pay Jolmson 

$1500 for the killing. 

Held: Appellant's 6"' Amettdment ripl~to counsel was violated. 

and the e ~~or 7vas hilrmfi~l. At the tune of the interrogation, 

Appellant was cl~arged with capital mn~~rder, but not with solicitation to 

murder. Relying on settled Supreme Court and CCA precedent, CL4 

observes that while the evidence would be adnussible during a trial for 

solicitation (baause Ms 6~hAmendmmt right to counsel had oot yet 

attacl~ed for that offense), it would not be admissible during t11e 

guill/i~~ocenee phase of Itis tdal on capital murder. As for the ponishnmt 

phase, CCA points to its recent decision in WaFlbmok, 

29lN103 (CGA 2000), cert. denied, 121 S.Ct. 1407 (201)1), wliicl~ 

involved a simila fact scalario u~volving the same undercover cop, 

who posed as a hit man and tape-recorded the conve~%itio~~. CGA held 

the defendant's 6" Amendment rights had been violated because his 

light to counsel had attached, aud co~insel was not oolined of the Interrogation. 

Similarl~ Appellant's right to counsel was violated W~ICII the 

State soltcited the tape-recorded conversation and used it against 

Appellant during punishment at I& capital murder trial, charges of 

rvl~iclt were perld!ng at time of the co~~ve~sation. The error uyas harmful 

under TRAP 44.2(a) because without the improperly admitted evide~ce, 

the State would 11ave had only the testimony of Rad, who had 

reported to the cops Ll~atAppell;u~t tried to hire sonleone to kill thewitnm. 

The ju~y would not hae known that Appellant made p1a11s u4tl1 

Johiison for Jolmson to retrieve a gun and kill the u4tness. The State 

empl~asized the taped conversation durhg its closing statements, and 

the other evidence of h~h~re dangerousness uras considerably less tl~an 

the evidence in Westbrook (u~clodh~g 5 murders), wlllch was not 

reversed because 5 judges ag~tcd the inadmissible eddence uras harmless. 

Here, tile CGA camlot say beyond a reasonable doubt that the tape 

did not inhence the sentencing joy Sentence is vacated, and we is 

remanded for a newr punisl~ment hcariug. 

Keller Dissent: Aitl~ougl~ the 11Lljority's decision is consisteot with 

iFttf6rook, CGA should "take this opportu~lity to reexamine and disavow 

lVttb~wLs conclusions about the admissibility of tl~is t)pe of 

evirlence." In Te.ws u Cobb, 121 S.Ct 1335 (2001), Supremes disavoucd 

doctrine of extending 61' Amendment right to counsel to 

unclmged offenses closely related to tl~e charged offense. The evide~m 

should at least be admissible during panisltmeot. 

PDRS GRANTED IN OCTOBER 2001 

1026-01 HIRES, CHARLES 10110101 S Harris Aggravated 

Kidnapping (040lln05) 

1. Wl~etl~er the Court of Appds erred in considerhg extrn tatual 

facto~s, such as legislative histoy, to determine whai constitutes "subst;uaial 

interfe~tnce" for purposes of the kidtlapping statute; and 

whether the snlllciency of the evidence to support Appellant's kidoapping 

conviction sho111d be measured by the plain language of the elements 

provided in tile kiduapping slatute. 

1164-01 RODRIGUEZ, CWOS 10110101 A Wicluta Failure to 

Register as Sex Offender (045///685) 

1. Da Le 1997 mendments to the sex offender registmtion law 

violate the "ex past facto" cla~~se of tile U.S. and Texas ConsUtutions by 

requirhxg persons convicted prior to the aamendment's effective date to 

register as a sex offender for life 

1168.01 ZUJJANI, GERALD CHRISTOPHER 10110101 A Travis 

i\ssault w/Bodily hljaly (hT) 

1. In ~wolving Petitioner's claim that the evidence presented at trial 

is factually i~isulliciento establisl~ bey011d a reasonable doubt that 11e 

did not act in self-defense, d~e Coud of Appds applied incorrect standards 

of review. 

2. The Court of Appds erred in holding that the tial court did not 

abuse its discretion by admitting inlo evide~~ce at trial, under the e~clted 

utterance exception to the hea~xay rule, Judy Tobey's testimony 

about Patti Dwinell's sktements to her on Pebrua~y 3, 1999. 

1196.01 SCI+RINEhIAN, MICHAEL AUGUST 10110101 S (SPA) Kerr 

Mtempted Burdaly (047/1/754) 

1. in the absence of express assumaces of privac): is an accused's 

subjective expcchtion of privacy in a police inteniew room one tl~at 

society is prepared to recognize as objectively reasonable 

1364-01 PmNTE, AhTHONY YllW 10/10101 S (SPA) F& 

Possession of Cocaine (04W370) 

1. Wl~ere the Defendat~t, ~III~IIWI~ to a plea bargain, plead [sic] 

guilty to a fclot~y (over uzhicll the district court 11d jurisdiction) md 

hvo misdemeanors (over which the district court did not have jurisdiction), 

may the state waive the illegal poltion of the j~tdgment (deferring 

adjudicatlon on the misdemeanors) such that the district court 

rekios judsdiction on the felony 

2. \%ere the Defendant plead [sic] guilty to a felony (over wlucll 

the dish'fct court had jurisdiction) and two misdemeanors (over wl~ich 

the district coud did not haw jurisdictioo), and uvs placed an 

deferred adjudication comninnity supcn4sio11, may the defendant raise 

a claim relating to the odginal plea proceedmg in an ~ppd from the 

adjudication of his guilt on the felony 

3. Does a misjohder of offenses render void all judgments of conviction 

for all of the nu'sjoit~ed olIenses7 

1039140-01 SMITH, DESZICK 10/24/01 S Falls Iojuly to a Cldd; 

Criminal Trapass; Assault: (40///70l) 

1. Did the Court of appeals err by imposing tl~e disposition of 

returning the paties to their pre-plm StahIS as a remedy for nlisjoinder 

of felony and mnisden~ea~or offenses in one iodictmentl 

1195-01 WEST, K&\WTIi 10/24/01 AHwris Murder: (NP) 

1. The Court of Appds erred in holding that Appellant failed to 

preserve error to tl~e admission of an ext~w~eou$ shooting and in hold- 

36 VOICE FOR THE DEIENSI \HWW.TCDLA.COM DECEMBER 1001

I 

SIGNIRCANT 

DECISIONS REPORT 

- - 

ing that the evidence was admissible, 

2. fl~e Court of Appds erred in lrolding that Appeliant wm not 

entitled to a joy instruction on the law of seK-defense as it applied to 

the extmeaus sl~ooting. 

1263-01 MIDDIBTON, DAVlD WAYNE 10/24/01 A Wise POCS: (NP) 

1. Should a trial court provide the ju~ywith a deEtnition of the term 

"probable cause" in an aa. 38.23 inst~uction 

0652-00 Ex Pate TAYLOR, PHILIP DMEI. 10/31/01 SPA Bwzos 

IntoxicRtion Manslaughter: (NP) 

1. where a jury retnms a verdict of not guilty, necessarily based 

npon a negative finding regarding a speciEally alleged m e r or 

means of proving an ultiniate issue, is the state precluded frnm reUtigating 

the same ultimate ime, bwd upon a different manner or 

menos, in a subsequent proceeding between the same parties 

2. Does a jury verdict of not guilty in a intoxication manslaughter 

prosecution, necessarily bbase upon a negative finding regarding 

intoxication by alcol~ol, preclude the state from relitigating theisstre of 

intoxication by alcohol and malimanain asubsequent prosecution for 

intoxicauon manslaogl~ter bctueen the same parties 

124314-01 IDO\VA, VICTOR ABIMBOIA 10/31/01 A Dallas Then & 

Sccuriag Docunleot by Deception: (NP) 

1. Should the Dallas Comt of Appmls have decided the proper 

mount of restitution when the attmney at the hmw on the motion 

fur new trial (old the trid court that an issue wcmld be the mount of 

restitution and the evidence sl~owed that the trial cou~t abused its dis- 

Wetion hi ordering $14,522.45 in restitution as a condition of probation. 

1464-01 RAMImZ, 1.ETlCIA hiARIACA 1W31/01 SPA Smith Theft: 

(NP) 

1. After die 1985 ~onstitulional amahent to Art. Y g 12, does the 

amendnlent or cl~ange of a complaint that nnderiies an information 

operate to vitiate the complaint and diva the trial cwrt of jnrisdiclion 

2. Does a defect in a complaint that underlies an hlforn~ation consUtnte 

a defect in the inhmation that is waived if not dsed prior to 

tdal 

**Qe following State's PDRs from Harris County were all 

from convictions for Engaging in Ocgankred Criminal Activity, and were 

granted on identical issncs: 

1220-01 BAIIH, BRENDA SUE 10/31/01: (44N690) 

1221-01 DABIN, JOHN 10/31/01: (44M90) 

1222-01 SCHNUR, JLW 10131/01: (44///690) 

1223-01 scImm, RALPH 10/31101. (44///690) 

1224-01 COLEMAN, CHARiK3 10/31/01: (44///690) 

1225-01 BABIN, JOHN AJDiV 10/31101: (4W690) 

1226-01 COLEMAN, CHARGES EmCIS 10/31/01: (4#//690) 

1227-01 SCHNUX, W I I 10/31/01: (44/N610) 

1228-01 SCHNtiR, JAMES ARNOLD 10/31/01: (44///690) 

1229-01 BAUFI, BRENDASUE lW31/01 (44///690) 

1. Do federal double Jeopardy pIjl~ciples bar a second tt.ial for the 

same offense &er tile petitionerswere acquitted if the state cl~anges its 

the017 as to who owned tlie property dlegedly stolen 

2. IsSnlothermat~ u. Sfate, 415 S.W.2d430 (Tex. CCdm.App. 1967) 

Still good law mder federal double jeopady priaciples 

COURT OF APPEALS 

CO-DEFENDANTS HAVE EXPECTATION OF PRIVACY IN 

POLICB INI'BRROGATION ROOM: TRWJNO F! SlBB, No. 04-00- 

00580-CR (9/19/@1), 

Continuing with its holding in State u Scbefnemann, 47///754 

(San Antonio 2001), COA holds that the defendant had a justiftable 

expectation of prhszcy when the police, unknown to him, put him in 

mom with codefendant in order to overhear their come~mtion. 

Suppression of sfatenlenfs upheld. 

[* * * Note: CCA has also gmted revlew of a State Prosecuting 

Attorney's PDRon the very lssuein this case- see Scheinemann PDR, 

No. 1196-01, supra, on which COA had relied.] 

SAPB RELEASE IN KIDNAPPING CASE: ClRRBON U. flX'!E, 

No, 06b-0-001809-CR (9/18/01). 

Good discussiori of safe relme in an aggravated Wdnapping case. 

A voluntzy safe release reduces the pnnislment but is not raised 

where the victim is found unlwned. Burden is now on the defendant 

and is determined solely by the conduct of the accnsed, not the victim's 

pliysicd condition. 

EVIDENCE HELD INSUPPICIENf IN FELONY D\VI: lf%iKRR K 

STATH, No. 06-01-00034-CR (9114/01). 

Evidence in a felony DWI deemed insuBcient when the prior convictions 

were too remote in tinie to be admissible. COA refuses to 

accord evidentiaty signi5cance to an intenRening convicllon that was 

provided10 trial court but never introdnced in hnt af Le juy Rather 

than enter a judgment of acquittal, COA refornls judgment to a conviction 

for a nlisdemeanor and remands for a new punishment hearing. 

INVOWNTARY PLEA: LOPEZ K fl&, No. 06-01-00073-CR 

(9/20/01). 

An insolnntary plea cmot be raised absent tdal court pernlission 

to appeal, if the sentence docs not exceed tha ngreed to by the panies. 

It is not a jurisdictional defect. 

DWI BREATH TBST RESULTS:PRICB u. STHE, No. 02-00-253- 

CR, 9/20/01. 

Retrogmde extrapolation of breatl~ test results is not required if die 

remainiug evidence is sufficient to prove intoxication beyond a reasonable 

doubt. 

State mayseu~reaJt~ryinstruction Illat &ow a conviction for either

impakment of faculties or akol~ol concent~iltion and hclude bath in 

same applimtio~~ pa~qmpl~. Thesc are not sepatte offenses but d& 

ferent mantleis and meals of committing same offense. 

UNLAmPUL DElWCION: MCQUAHIlPRS u. STaTB, No. 02-08. 

198-CR, 9/20/01. 

may raise the issoe dm it fails to file g notlce of appeal but i@ses tile 

issue In a cross-appeal from the defendant's issues. Disagreeing uith 

1ItdIe1', 9///925 (Beaumont, 2000, pet. I@'&, COA holds that, in a 

cross-nppcal, state need ~ ~ot file its own notice of appd. H 

Though COAfinds ple11lt)lof justilication for the hac stop, they find 

inadequate ptvbable cause to detain the defeltdlldant for a smch for 

Ilarcotlcs. Wlffle tlrls is u fact specific case, COA finds tllat each of the 

circumstances ean be e\plained to anotller co~~clusio~~ and thlls, continued 

detention uns illegal. COA, in effect, does ics own a~alysis of 

facts to reach a diaerent co~~clusion. 

NO NOTICE OFAPPBAL NEEDED IN STATE'S CROSS-APPBAL: 

dUZRLL U. STWZf, No. 04-00-00543-CR, 9/26/01. 

July convicts defendant but does not assess punishment. Tl~olrgh 

clearly this is a void sentence, the issuein fl~e case is wl~etl~er the stafe 

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