Texas District & County Attorneys Association

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Texas District & County Attorneys Association

THE TEXAS PROSECUTORthePresident’s ReportBy Bruce IsaacksCriminal District Attorney in DentonIt’s roundup timein Denton County!Texas has a history of cattleroundups, but in DentonCounty the roundup haschanged from the familiar four-leggedtype to the two-leggedcritters: hot check writers.The “cowboys” are thedistrict attorney investigators,deputies from thesheriff’s office and constableoffices, and other lawenforcement personnelworking together as arrestteams. As you read this,the hot check cowboyswill have finished a threedayholiday roundup ofserving warrants on hotcheckwriters.But most offendersdon’t wait for the officersto come calling, particularly because weallow all misdemeanor offenders to getout of jail on a personal recognizancebond. We make sure hot-check writershear about the Hot Check RoundupPAGE 4(and how they can avoid arrest and jail)through newspaper ads, billboards, postcardmailings, press coverage, and othermethods. Often, we allow mediareporters to accompanythe roundup team to gaineven more attention somore offenders willappear without arrest.The publicity brings thebad-check writers to thecourthouse, lining up topay off business owners.The Hot CheckRoundup is one way weIt obviously pays to go after hotcheckwriters, and it’s somethingevery county, big or small, can do.have emphasized the prosecution of hotcheck cases since 1991 when I was electedto my first term. When I ran for districtattorney, I talked about violentcrime and drug cases to people in thecommunity, but in business after business,the owners really wanted to knowwhat I was going to do about the hotchecks they received. I made a promiseto business owners that I would collecttheir hot checks.The first thing I did was hireDennis Cox away from Dallas County’sHot Check Division. I had knownDennis since he was my investigator inDallas County and knew what he coulddo. Our Hot Check Division, under hislead, has had remarkable success overthe years. In 2002, we recovered$95,000 in one case, our biggest recoveryto date. The guy gave a bad bankdraft for a Porsche at a local dealership.Before we recovered the money, the salesmanager of the dealership said he was“sweating bullets.”Our goal in Denton County is notjust big collections, but to collect everydime lost to merchants due to hotchecks, and we use no tax dollars in theeffort. Last year alone, we collected overhalf of a million dollars in DA fees,court costs, and fines and recovered overa million dollars in merchant restitutionand fees. Since 1991, we have returnedmore than $13 million toDenton County businessowners in restitution andfees.It obviously pays togo after hot-check writers,and it’s something every county, big orsmall, can do. Our way isn’t the onlyway, but it has proved successful inDenton County, and its componentscan be adapted for any county. Perhaps


JANUARY/FEBRUARY 2004our model can be helpful in your effortsto prosecute hot check writers in yourcommunity.In addition to the Hot CheckRoundup, the Denton County programincludes a “fast file” option for merchants,a web site for merchants andcheck writers, and top-notch handwritingexpertise from three of our investigators.The free merchant fast-file programrelieves the merchant of such requiredprocedures as sending certified notice tobad-check writers and taking the affidavitsof those who claim their checkswere forged. We do all that. The merchant,in return, agrees to file bad checkswithin 90 days, to obtain the birthdateand driver’s license number of the checkwriter at the point of sale, and to acceptno restitution after the check has beenfiled with our office. A fast-file merchantcan file bad checks with our office simplyby putting them in a special envelopeand dropping them in the nightdeposit of any branch of a specified localbank.Those who claim their checks wereforged have to face the handwritingexpertise we provide. Three of our certifiedinvestigators are among fewer than100 individuals in the nation withadvanced handwriting analysis trainingby the federal Secret Service, paid for byour local bad-check writers, not our taxpayers.To claim forgery, a hot-checkwriter must fill out the required affidavit;we also require them to fill out aquestionnaire and provide handwritingexamples. (In about 20 percent ofclaimed forgery cases, the forgery claimis unfounded.) This expertise also providesadditional resources in the prosecutionof many other fraud-basedoffenses the office receives from policeagencies and citizens.Our Hot Check Division maintainsa web site, linked to the Denton Countyweb site (www.dentoncounty.com),which has information for merchantsand check writers. The merchant canfind out the types of checks we acceptfor prosecution and how to file a badcheck. The check writer can find outwhat he needs to do to take care of hishot checks, including a payment planoption if the check(s) cannot be paid infull. The web site also updates the publicon the Hot Check Division’s effortsand results.The Denton County approach tohot-check prosecution has other components,all designed to achieve whatDennis Cox calls the “three Es”: easy forthe merchant, easy for the hot-checkstaff, and easy for the hot-check writer.By making the process as easy as possible,we are serving the needs of taxpayers,merchants, and check writers whileachieving the goals of law enforcement.For every victim, no matter what theoffense, our response is their contactwith the criminal justice system, andhow we deal with the offense is whatthey will remember. Rounding up thehot check writers for prosecution is oneof the ways we have tried to make surethat every victim—whether of a violentoffense, a large or small loss—has a voicein Denton County.DeFriend namedMADD’s Prosecutorof the YearKara Neely, director of MADD’s CentralTexas Chapter, with Limestone County andDistrict Attorney Roy DeFriendLimestone County and District AttorneyRoy DeFriend was named Prosecutor of theYear by the Central Texas Chapter of theMothers Against Drunk Driving (MADD)organization. DeFriend was honored inearly December at the kick-off event forMADD’s Tie One On For Safety, the red-ribboncampaign to raise awareness of drunkdriving’s dangers during the holiday season.DeFriend was the misdemeanor prosecutorfor many years in Limestone County,trying its DWI cases. When elected to hisfirst term, he graduated to intoxicationmanslaughter and assault cases,“so I’ve gottento work with MADD very closely,” hesays. He has nothing but praise for theCentral Texas MADD chapter.Receiving the award “was an honor,” hesaid.“I felt humbled; it was really a shock toreceive it. I can’t say enough about whatMADD does; they’ve been there in thetrenches with me with these victims’ families,and they provide lots of support.”A recent case was heartbreaking: Alocal police officer’s son was hit and killedby a drunk driver. DeFriend recognized theofficer from a previous case several yearsContinued on page 39PAGE 5


THE TEXAS PROSECUTORtheExecutive Director’s ReportWe have had some terrific leadership atthe helm this last year. I want to thankCheryll Mabray (CALlano), for her stronghand at the helm asChairman of the Board.Common sense andcountry flair. (As long asit’s not needed before 8a.m., of course.)I also want to thankJack Skeen (CDA Tyler)for his toil in the fields ofprosecution for all theseyears. We suspected that sooner or laterJack would get the urge to jump to abench, which he did recently, but wenever really pictured this mainstay ofEast Texas prosecution and a formerTexas Prosecutor of the Year actuallyleaving office in our lifetimes. Thanks,Jack. Big boots to fill.Trial ad training at BaylorLindsey Roberts, Judy Bellsnyder, NoelRamos, and the great TrainingCommittee led by Casey Garrett (ADAHouston), have done a terrific job thispast year bringing you timely and relevanttraining. And it only gets better.Your training team has developed along-term relationship with BaylorSchool of Law, which has tremendousBy Rob KeppleTDCAA Executive DirectorA couple of thanksstate-of-the-art trial advocacy courtroomsand facilities. As you recall, wedid a lot of NITA-styletrial advocacy training inthe late ’80s and early’90s, but it was alwaystough to create the rightcourtroom atmosphere ina hotel room. So we abandonedthe concept for lackof appropriate facilitiesand let the NationalAdvocacy Center in SouthCarolina take the lead ontrial advocacy training. But only a limitednumber of Texas prosecutors can getthe NAC training each year, so we havebeen looking to reboot the trial adeffort.Thanks to Dean Brad Toben of theBaylor School of Law, we now have theopportunity to do what we have alwayswanted to do: offer you advanced trialadvocacy training in a first-class facility.We have the teaching talent, and wehope this buds into a long-term relationshipwith an outstanding school.The TDCAA Training Committeeis developing the faculty, and the firstTDCAA Advanced Trial AdvocacySchool at the Baylor School of Law ispenciled in for August 9–13, 2004. Wewill keep you informed as this greattraining opportunity develops.Longevity pay updateAassistants in offices with felony jurisdictionmay be inching closer to yourfirst dollup of money from the comptroller.As we go to press in mid-December, we know that: 1) the countieshave stopped paying the supplementout of their wallets; and 2)Comptroller Carol Keeton Strayhornhas decided to make the first longevitysupplement payment as soon as heroffice can, probably in January.Now the good, bad, and good news:The good news is, it looks like the fundthat will support the supplement isdoing well, and I am cautiously optimisticthat in the long run there will beenough to cover the supplement. Thebad news: It is taking awhile for themoney to find its way to the comptroller(that’s because of a drafting mistakein the bill that is my fault), so the firstsupplement payment may be a bit puny.The good news: The comptroller canmake up the shortfall in future payments.We will let you know when thecomptroller unleashes the first round ofchecks to the counties, so watch to see ifthat money makes it to your paycheck.As for the lawsuit filed by twobondsmen in Houston: It has disappearedfor the time being into the blackhole of federal litigation after going tofederal district court. Nothing hasmoved yet.Complaints aboutindigent representation?In the wake of the reforms of our indigentdefense system, there seems to be agrowing debate over whether wellheeledlawyers from other specialties inthe profession should pitch in and helpout. And not without some complainingfrom those lawyers.PAGE 6


The best response? A few yearsback, our former executive director,Tom Krampitz, responded to one attorney’scomplaints that with the overheadin his deep-rug office, he couldn’t affordto represent indigent people. Tom’sresponse: “Hey, noblesse oblige, bubba.”Couldn’t be better said.A lawyerly holiday wishThis has been floating around the internetin various forms, but it makes for anice, lawyerly seasonal greeting:Please accept with no obligation,implied or implicit, my best wishes foran environmentally conscious, sociallyresponsible, non-addictive, gender neutralcelebration of the winter solsticeholiday, and hopes for a fiscally successful,personally fulfilling, and medicallyuncomplicated recognition of the onsetof the generally accepted calendar year2004, but not without due respect forthe calendars of choice of other cultureswhose contributions to society havehelped make America great (not toimply that America is necessarily greaterthan any other country or is the only“America” in the Western hemisphere).By accepting this greeting, you areaccepting these terms. This greeting issubject to clarification or withdrawaland is revocable at the sole discretion ofthe wisher at any time, for any reason orfor no reason at all. This greetingimplies no promise by the wisher toactually implement any of the wishesfor the wishee her/himself or others orresponsibility for the consequenceswhich may arise from the implementationor non-implementation of same.This greeting is void where prohibitedby law.Happy holidays, y’all.JANUARY/FEBRUARY 2004Key Personnel Seminar photosTwo hundred ninety people attended TDCAA’s KeyPersonnel Seminar in San Antonio in late October. Hereare a few memories of the week.More photos on page 8PAGE 7


THE TEXAS PROSECUTORContinued from page 7PAGE 8


Winning Oscar SherrellAward an honorReceiving the Oscar Sherrell Awardfrom the Key Personnel Board wasindeed a very big honor for me becauseI knew the man for which the award isnamed, plus I used to attend the annualKey Personnel Seminar when I workedfor the Travis County District Attorney’soffice many years ago—back when itwas held at the South Austin QualityInn. In addition to receiving good trainingand networking with other offices,the Quality Inn had this excellent chefwho fed us the most wonderful meals.Attending the Key Personnel Seminar atthe Quality Inn meant gaining at least10–15 pounds in three days!Because I am one of the few peoplearound who remembers Oscar Sherrell,this award is particularly meaningful. Ifirst met Oscar in 1985 when I startedworking for the Association and heworked for the Prosecutor Council. AtBy Marnie ParkerTDCAA financial officerMarnie Parker receives the Oscar Sherrell Award atthe Key Personnel Seminar in San Antonio. Winningthe award was a real surprise.that time, the council contracted withTDCAA to put on seminars. Oscar wasthe money man at the council, the onein charge of reimbursements and payingthe bills, and the two of us workedclosely together. After the ProsecutorCouncil was sun-setted by theLegislature, Oscar came to work forTDCAA. While he worked with us,Oscar took care of the screening andprocessing the seminar reimbursementsand then passed them onto me for payment.In addition he became our computerguru and dragged us kicking andscreaming into the computer age.Oscar passed away in 1989. Hefought hard for life, but in the end, Godcalled him home. I figure the Big Guyneeded Oscar’s help in keeping theheavenly books! He had many friendsand a loving family. In addition to beinga friend of the association and its members,I was proud to call him a personalfriend. He was a very niceman. Because he had worked in theState government for so long, heknew whom to call and how to getthings done. He would do anythinghe could to help you out.Because my association with theKey Personnel Seminar goes backmany years and I knew Oscar personally,I am really humbled andhonored to receive the award namedfor him. I was very surprised. TheKey Personnel Board and TDCAAstaff members certainly pulled oneover on me! Thank you so much forhonoring me.P.S. Your check is in the mail!JANUARY/FEBRUARY 2004Continued from page 21Confidentialityrules (cont’d)(or a representative sample if massive),and, most importantly, a reasonableexplanation as to how andwhy the release of the requestedinformation would interfere with lawenforcement. If the informationrelates to a pending case, release ofinvestigative or prosecutorial information(other than public and courtrecords, which must be disclosed)will likely constitute such an interference.But the Attorney General mustmake that conclusion, not you; thereis no standing rule to fit each requestsituation and every AG opinion islimited to the particular records.Each prosecutor’s office shouldhave in place a procedure to timelyreceive and screen each open recordsrequest so that you don’t miss thestatutory time limit in which toobtain an AG opinion. Otherwise,the full contents of that pendingcriminal file could be disclosable.Again, it is advisable to becomefamiliar with the Public InformationAct; it is far too involved to give itjustice in this brief article.Finally, and the biggest questionof all, is: do you share the informationwith your spouse? Only youknow the answer to that one.PAGE 9


THE TEXAS PROSECUTORElected Prosecutor Conference photosMore than 120 district and county attorneys from around Texas converged on SanAntonio in mid-December for TDCAA’s Elected Prosecutor Conference. Here are a fewphotos from that seminar.More photos onthe back coverPAGE 10


Terry Keelwins Law andOrder AwardJANUARY/FEBRUARY 2004Continued from front coverMia Magness isLone Star ProsecutorState Representative Terry Keel was honoredat the Elected Prosecutor Conferencewith TDCAA’s Law & Order Award recognizinghis legislative work on criminal justiceissues. Keel, state representative for District47 in southwestern Travis County, was honoredfor his work on crime and public safetyissues during the 78th Regular Session.Rep. Keel has a history of leadership oncriminal justice issues in the Texas House ofRepresentatives, and as the chairman of theHouse Committee on CriminalJurisprudence, he repeatedly defended theinterests of prosecutors, law enforcementofficers, and crime victims.“State Representative Terry Keelbrought a balanced approach to his role asChair of the Criminal JurisprudenceCommittee,” said Travis County DistrictAttorney Ronald Earle. “His experiences inboth law enforcement and as a defenseattorney have given him a unique and valuablelegislative perspective. He is deservingof this award.”In addition to his work as a committeechairman, Rep. Keel led the charge to craft afair and responsible method for addressingthe issue of mental retardation in deathpenalty cases (H.B. 614, which passed thehouse but failed to pass the Senate for asecond consecutive session).“I am honored to receive the Law andOrder Award from TDCAA on behalf ofTexas prosecutors,” Keel said.“As a formerprosecutor and Travis County Sheriff, I ampassionately committed to providing the citizensof Texas with a fair and effective criminaljustice system. I look forward to continuingto work with Texas prosecutors andother members of the criminal justice arenain improving our system.”fied handling of the Clara Harris murdertrial, in which a Houston dentist ranover and killed her philandering husbandin full view of the couple’s teenagedaughter. Harris was eventually convictedand sentenced to 20 years in prison.The case—dubbed the MercedesMurder for the $70,000Mercedes sedan Harrisdrove during the attack—garnered nationwideattention, and Magnesswas quoted in papers andseen on television newscastsacross the country.The trial’s publicitywas a shock for the unassumingprosecutor. “The media involvementadded a weird dynamic to the casethat I was not comfortable with andreally would have liked to ignore completely,”Magness said. “Unfortunately, Icouldn’t. They were there day after day. Iwas disappointed that some of the mediacoverage touted Harris as a hero or anavenger of women. It seemed so unfairthat the violence and depravity of herwas downplayed. The victim in the casedeserved better.”To prepare for the high-profile trial,“I talked to anybody who would give mefive seconds of their time,” Magnessremembered. “We didn’t have the sameresources available to us as the defendantdid, so our theory of preparation was totalk to everybody and to know as muchabout every aspect of the case as wecould. Every person we talked to gave usa valuable piece of information andadditional leads. It was a wonderful collaborationbetween members of myoffice, the Nassau Bay and WebsterPolice Departments, and the HoustonPolice Department.”Such hard work and long hours arenothing new to Magness, whose first jobout of school was with theHarris County DA. Shestarted prosecuting misdemeanors,then moved onto a two-year stint in thePublic Integrity Divisionwhere she and other prosecutorsset up sting operationstargeting policeofficers trafficking narcotics.Magness is currently chief of the177th District Court.“I was overwhelmed when I learnedthat I had been selected to receive thisaward,” Magness said. “It’s one thing forpeople outside of prosecutors to sayyou’ve done a good job or to recognizeyour efforts, but the people who do whatyou do day in and day out, when theyrecognize you’ve done a good job, itmeans something.“None of us do this job for themoney. For every irate citizen who hascalled and screamed at me on thephone,” Magness said, “there is also asurvivor of a murder victim who has puttheir arms around me in a courtroomand said thank you, or a child victim ofmolestation who was believed in courtand who has drawn me a picture.“I wouldn’t trade those moments foranything.”PAGE 11


THE TEXAS PROSECUTORPAGE 12FOCUS ON …By Chip WilkinsonAssistant Criminal District Attorneyin Tarrant CountyEvidentiary noticeHere are notice requirements for punishment evidence.By statute and as a matter of constitutionalrestriction, noticemust be provided before the Statemay introduce various types of evidenceduring the punishment phase of a noncapitalcriminal trial. This article examinesthe types of evidence for whichnotice must be given and the properform for effective notice for each kind ofpunishment evidence.Enhancement evidenceThe Court of Criminal Appeals has longmaintained that as a matter of constitutionalprinciple, a defendant is entitledto notice of prior convictions to be usedfor enhancement. 1 While enhancements“must be pled in some form,” they neednot be pled in the indictment, “althoughit is permissible and perhaps preferableto do so.” 2 It is sufficient that theenhancement be pled somewhere, suchas in a motion to amend. 3 At least onecourt has held that in order to be properlypled, notice must be filed with thecourt before trial, so that an informalletter informing the defendant of theState’s intended enhancements does notconstitute sufficient notice. 4Notice must be in writing. 5 Propernotice consists of a description of theformer conviction’s judgment that willenable the accused to find the recordand prepare for a trial of the questionwhether he is the convict named in therecord. 6 Multiple enhancements neednot be pled in separate paragraphs. 7Though the Court of Criminal Appealshas yet to address the specific issue ofhow soon before trial notice must begiven, at least one court has held thatnotice must be provided at least 10 daysbefore trial in order to be timely. 8Evidence introducedunder Article 37.07Article 37.07, §3(g) requires that upontimely request by the defense, the Statemust provide “notice of intent to introduceevidence under this article.” 9Though on its face §3(g) appears toapply to all types of punishment evidence,Texas courts have not interpretedthe statute quite so broadly. Althoughthey have concluded that notice must beprovided if the prosecution intends tointroduce a prior criminal record, 10 evidenceof an extraneous offense, 11 evidenceof gang affiliation, 12 or characteror reputation testimony, 13 several courtshave held that the State need not providenotice of its intent to introduce victimimpact evidence or reputation testimony.14The State is not required to providenotice of evidence of offenses it does notintend to introduce in its case-in-chief,and its failure to provide notice of suchevidence does not bar the State fromusing the evidence either in rebuttal orcross-examination, because such evidenceis not introduced “under” Article37.07. 15 On the other hand, notice mustbe provided for all unadjudicated actsthe State intends to introduce during itscase-in-chief; there is not an exceptionfor “same transaction evidence” as thereis to the notice requirement under Rule404(b). 16By the statute’s very terms, the prosecutionis required to provide noticeonly after the defense has made a “timely”request. 17 A request by the defensefor notice under Rule 404(b), whichapplies to evidence the State mightintroduce during the guilt-innocencephase, is not sufficient by itself to triggerthe prosecution’s obligation underArticle 37.07, §3(g). 18 Similarly, arequest incorporated into a pretrialmotion to the court does not complywith §3(g), and the State is not requiredto respond unless the court actuallygrants the motion. 19 However, a requestfor notice filed with the court, butwhich on its face is “self-executing” anddoes not require action by the court,automatically triggers the notice obliga-


JANUARY/FEBRUARY 2004tion. 20Thus, a defendant may require theState to provide notice of its intent tointroduce criminal convictions in one oftwo ways: 1) serve the State with arequest for notice, or 2) file a discoverymotion requesting the court to ordersuch notice and secure a ruling on it. 21The statute does not define whatconstitutes a “timely” request, though itactually uses the phrase twice. 22 Arequest filed upon the day of trial is nottimely. 23 A request’s “timeliness” shouldbe left to the trial judge’s discretionunder the case’s facts and circumstances.24 Though §3(g) does not mandatethat the request be filed with thecourt or even that it be written, evidentiaryproblems may arise if it is not. 25Upon receipt of a defendant’s timelyrequest, the prosecution must providenotice of its intent to introduce evidenceunder Article 37.07 “in the same mannerrequired by Rule 404(b).” 26 Rule404(b), however, requires only thatupon a “timely request by the accused”the State provide “reasonable notice …in advance of trial” of its intent to introduceextraneous offense evidence. 27Neither Rule 404(b) nor Article 37.07define “reasonable notice.” 28Courts that have addressed the issueof “reasonable” notice have focused onfour aspects of “reasonableness”: 1)whether “reasonable notice” may bedetermined by the facts and circumstancesof the particular case; 2) whetherreasonable notice must be in writing; 3)whether there is a specific time pastwhich notice must be deemed objectively“unreasonable”; and 4) what informationmust “reasonable” notice convey?(1) The “reasonableness” of the prosecution’snotice must be determined bythe facts and circumstances of the case.Courts addressing the issue concludedmerely that “the reasonableness of theState’s notice turns on the facts and circumstancesof each individual case.” 29Despite the failure of either statute toprovide any guidance, and the courts’understandable reluctance to mandatespecifics where the legislature has not,some parameters are clear. Merely providingan “open file” to the defense doesnot satisfy the State’s obligation to providereasonable notice, because while itmay inform the defendant of the priorconvictions or extraneous offense evidencethe prosecution possesses, it doesnot provide to the defense specific noticeof what evidence the State intends tointroduce during its case-in-chief. 30 Onthe other hand, enhancements includedin the indictment have been held to sufficientlycomply with the statute’s noticerequirements. 31(2) Notice need not be in writing.Neither Article 37.07 nor Rule 404(b)specifically require that the State’s noticebe in writing. 32 Indeed, the Court ofCriminal Appeals has opined that theState need not even explicitly declare itsintent. In Hayden v. State, the court heldthat the State’s production of witnesses’statements shortly after the defendantdemanded notice under Rule 404(b)constituted “reasonable” notice of theState’s intent to introduce the extraneousoffenses outlined in the statements. 33Although the “better practice” is for theprosecutor to “state explicitly the intentto introduce extraneous offense evidence,”the court observed, the prosecution’sdelivery of the statements shortlyafter receiving the demand for notice“implicitly” notified the defense that theprosecution intended to introduce theextraneous offenses contained in thestatements. 34By analogy, the prosecution’s deliveryof copies of a defendant’s prior criminalhistory shortly after a request by thedefense under Article 37.07 would“implicitly” notify the defense of theState’s intent to use the records duringpunishment. 35 The prosecution shoulduse caution in such an approach, however;as the court has warned, “the longerthe time lapse between the receipt of thenotice and the delivery of the witnessstatements, the less likely” the notice willbe found to have been “reasonable.” 36Moreover, as one court of appealshas implied, relying upon the timing ofthe delivery of certain materials to signalthe State’s intent to introduce them intoevidence can be a double-edged sword:delivery of incomplete records may misleada defendant into concluding thatthe State does not intend to introduceevidence of other unadjudicated acts,thus making any late attempt to amendthe State’s notice problematic. 37(3) There is no mandatory time deadlinefor “reasonable” notice. There is noset time deadline by which the State’snotice may be deemed “reasonable” orContinued on page 14PAGE 13


THE TEXAS PROSECUTORContinued from page 13PAGE 14“unreasonable” for the statute’s purposes.38 Rather, the reasonableness of thetiming of the State’s notice “turns on thefacts and circumstances of each case.” 39While notice as late as the Friday beforetrial the following Monday has beenheld to be unreasonable, 40 under othercircumstances notice while trial isunderway has been held to be “reasonable.”41(4) What information must the State’snotice convey? Except for evidence ofextraneous offenses, there are no specificrequirements as to what information theState must provide concerning its intentto introduce types of punishment evidence.Practically, “reasonable” notice ofintent to introduce differing types of evidencemust provide differing types ofinformation to meaningfully aid thedefense in preparation for trial.(a) notice for criminal recordsAn enhancement allegation in an indictmenthas been held to comply with§3(g). 42 Thus, in providing notice of itsintent to introduce criminal records, theState should convey a sufficient descriptionof the judgment of former convictionto enable the accused to find therecord and prepare for a trial of the questionwhether he is the convict named inthe record. 43 At least one court has determinedthat notice listing the cause number,district court number, type ofoffense, date, length of confinement,and place of confinement constitutes“reasonable” notice. 44 As this appears tobe more than the State is required toplead for enhancement purposes, somethingless is probably sufficient. 45Obviously, providing copies of the convictions,either directly to the defendantor by filing them with the court, providessufficient information concerningwhat convictions the prosecutionintends to introduce. 46(b) notice for evidence of gang affiliationSimilarly, in giving notice of its intent tointroduce evidence of gang affiliation,the prosecution should probably providethe name and geographical location ofthe gang, whether it is allegedly a criminalstreet gang or other type of criminalorganization, and the approximate datesof the accused’s alleged membership inthe gang, though there is as yet no casewhich sets out the specifics of propernotice. 47(c) notice for extraneous offenses§3(g) specifically outlines what informationmust be included in the State’snotice of its intent to introduce evidenceof an extraneous offense or bad act. 48Under the statute, notice that the prosecutionintends to introduce an extraneouscrime or bad act “that has not resultedin a final conviction in a court ofrecord or a probated or suspended sentence”is “reasonable” only if the noticeincludes the date on which the allegedcrime or act occurred, the county inwhich the alleged crime or act occurred,and the name of the alleged victim of thecrime or bad act. 49 The courts have heldthat substantial compliance with thestatute is sufficient to provide reasonablenotice. 50(d) notice for reputation and opiniontestimonyAs already noted, the intermediatecourts are currently split over the issue ofwhether the State must provide notice ofits intent to introduce reputation oropinion evidence during the punishmentphase. Compare Rodger v. State,111 S.W.3d 236, 244-45 (Tex. App.—Texarkana 2003, no pet.)(prosecutionmust give notice of intent to introducereputation and character opinion testimony)with Hardaway v. State, 939S.W.2d 224, 226 (Tex. App.—Amarillo1997, no pet)(notice requirement of§3(g) does not apply to reputation testimony).If the State is required to providenotice, then the prosecution should atleast inform the defense of the witness’sname, whether s/he will provide opinionor reputation testimony, and the charactertrait or aspect of the defendant’s reputationabout which the witness will testify.51Failure to providereasonable noticeCourts that have found that the State’snotice was “unreasonable” under the circumstanceshave generally analyzed theerror as one of the trial court’s failure tobar admission of the evidence. 52 But evidenceneed not necessarily be barredfrom admission if the prosecution hasfailed to give required notice. Thestatute does not absolutely bar punishmentevidence for the failure to givenotice, and logic dictates against such adrastic action in many cases. 53 The lackof notice does not render the evidenceinherently unreliable but raises a questionabout the effect of procedural noncompliance.54 Indeed, mechanically barringthe evidence may not be the mostequitable solution to the lack of noticein any given case.


JANUARY/FEBRUARY 2004The purpose of §3(g) is to avoidunfair surprise and enable the defendantto prepare to answer punishment evidence.lvParticularly where the defendantalready has knowledge of the punishmentevidence to be proffered againsthim, the failure of the State to providenotice that it would be used against himmay be cured by a hearing outside thejury’s presence, permitting the defense tovoir dire witnesses outside the jury’spresence, or by granting a continuanceso that the defense may further prepare.55However, the Austin Court ofAppeals, in Roethel v. State, has rejectedsuch alternative solutions. 57 In refusingto consider such solutions, the courtpoints to the fact that prior to the 1993changes in Article 37.07, evidence ofextraneous unadjudicated offenses wasinadmissible during punishment. 58 In1993, the court observed, the legislatureadded both the provision that unadjudicatedoffenses be admissible and therequirement that the State providenotice of its intent to introduce such evidence.59 The mandatory language of§3(g), coupled with the history of theadmissibility of unadjudicated offenses,the court posited, leads to the “logicaland proper conclusion” that a violationof §3(g) makes the evidence inadmissable.60But the court overlooks the legislature’sfirst attempt to change the statutein 1989, which did not include a noticeprovision, 61 and the fact that the noticerequirement and the admissibility ofextraneous offenses are contained in separatesubsections of the statute, suggestingthat they are to be read separately.The Roethel court also reasoned that“if the evidence is admissible despite theState’s failure to comply with the noticerequirements,” §3(g) would be rendereda “nullity.” 62 But the court itself admitsthat a prosecutor’s bad faith may betaken into account in assessing theappropriate remedy for a violation. 63Arguably, a more open interpretation of§3(g) that takes into consideration theprosecutor’s good or bad faith, alongwith the defendant’s actual knowledge,the relevance and significance of the evidence,and the availability of alternativeremedies, would allow a trial court tobalance the value of a more informedfactfinder against the overall fairness toEvidence need not necessarily be barredfrom admission if the prosecution hasfailed to give required notice.the defendant.In any event, error under Article37.07(g) is susceptible to harmless erroranalysis under Rule 44.2(b). 64 TheRoethel court has concluded that harmmust be assessed in light of the statute’spurpose to avoid unfair surprise and toenable the defendant to prepare toanswer extraneous evidence. 65 Accordingto the court, to determine harm in lightof that purpose, a reviewing court mustanalyze whether and how the noticedeficiency affected the defendant’s abilityto prepare for the evidence. 66 Areviewing court must examine therecord to determine whether the deficientnotice “resulted from prosecutorialbad faith” or “prevented the defendantfrom preparing for trial,” the latterinquiry including whether the defendantwas surprised by the substance of theevidence and whether the lack of noticeaffected his ability to prepare crossexaminationor mitigating evidence. 67The Roethel court’s harmless errortest implicitly contradicts its pronouncementthat evidence for which the Statehas not provided notice should not beadmitted. Logically, if a court erroneouslyadmits evidence under the applicablestatute, in assessing harm the courtshould look solely to whether the evidence’sadmission affected the defendant’ssubstantial rights (i.e., whetherthe evidence’s admission had a substantialand injurious effect or influence onthe jury’s verdict). 68 The prosecutor’sgood or bad faith and the defendant’sability to counter or mitigate the erroneousadmission should not factor intothe court’s assessment of harm.The test does, however, provide agood starting point for determiningwhether a trial court should admit §3(g)evidence in conjunction with someother remedy, rather than bar it outright.Similarly, the test also provides a goodtest for review on appeal as to whetherthe trial court properly admitted evidencein spite of the prosecution’s violationof §3(g).Continued on page 16PAGE 15


THE TEXAS PROSECUTORContinued from page 15Endnotes1 See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim.App. 1997).2 Id.; see also Riney v. State, 60 S.W.3d 386, 388 (Tex.App.—Dallas 2001, no pet.); Williams v. State, 33S.W.3d 67, 68 (Tex. App.—Texarkana 2000, no pet.)3 See Brooks, 957 S.W.2d at 32; Riney, 60 S.W.3d at388; Williams, 33 S.W.3d at 68.4 See Throneberry v. State, No. 02-01-0079-CR, slip op.at 12, 14, 2003 WL 21101253, at *5-6 (Tex.App.—FortWorth May 15, 2003, no pet. h.).5 See Brooks, 957 S.W.2d at 33.6 See Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim.App. 1978); Sears v. State, 91 S.W.3d 451, 454 (Tex.App.—Beaumont 2002, no pet.).7 See Williams, 33 S.W.3d at 68.8 See Sears, 91 S.W.3d at 455.9 Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g)(VernonSupp. 2003).10 See Johnson v. State, 84 S.W.3d 726, 728 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d); Patton v.State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000,pet. ref’d); McQueen v. State, 984 S.W.2d 712, 715-16(Tex. App.—Texarkana 1998, no pet.); but see Brooks v.State, 76 S.W.3d 426, 435 (Tex. App. Houston [14thDist.] 2002, no pet.)(notcie applies only to evidencewhich did not result in a final conviction); Woodard v.State, 931 S.W.2d 747, 750 (Tex. App. — Waco 1996,no pet.)(same).11 See Apolinar v. State, 106 S.W.3d 407, 413-14 (Tex.App.—Houston [1st Dist.] 2003, pet. granted)(noticeapplies to extraneous offense evidence); Waltmon v.State, 76 S.W.3d 148, 153 (Tex.App.—Beaumont 2002,no pet.)(same).12 See Chimney v. State, 6 S.W.3d 681, 697 (Tex.App.—Waco 1999, pet ref’d)(notice requirementapplies to evidence of gang membership)13 Rodgers v. State, 111 S.W.3d 236, 244-45 (Tex. AppTexarkana 2003, no pet.); but see Hardaway v. State,939 S.W.2d 224, 226 (Tex. App.—Amarillo 1997, nopet.)(notice requirement under 37.07 does not applyto reputation testimony).14 See Ladd v. State, 3 S.W.3d 547, 571 (Tex. Crim.App. 1999)(prosecution not required to designate victimimpact witnesses before trial); Brown v. State, 54S.W.3d 930, 932-33 (Tex. App.—Corpus Christi 2001,pet. ref’d)(notice requirement does not apply to victimimpact evidence); Hardaway v. State, 939 S.W.2d 224,226 (Tex. App.—Amarillo 1997, no pet.)(noticerequirement does not apply to reputation testimony);but see Rodgers, 111 S.W.3d at 244-45 (notcie requirementapplies to reputation and character evidence).15 See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App.2002)(notice not required for use in cross-examinationand rebuttal); Washington v. State, 943 S.W.2d 501, 507(Tex. App.—Fort Worth 1997, pet. ref’d)(notice notrequired for use in rebuttal); Franklin v. State, 986S.W.2d 349, 357 (Tex. App.—Texarkana 1999), rev’don other grounds, 12 S.W.3d 473 (Tex. Crim. App.2000)(notice not required where evidence introducedduring cross-examination of defense witness).16 See Waltmon v. State, 76 S.W.3d 148, 156 (Tex.App.—Beaumont 2002, no pet.); compare Tex. R. Evid.404(b)(notice requirement applied to evidence ofother crimes, wrongs, or acts “other than that arising inthe same transaction”).17 See Tex. Code Crim. Proc. Ann. art. 37.07, §3(g)(Vernon Supp. 2003)(“The requirement under thissubsection that the attorney representing the state givenotice applies only if the defendant makes a timelyrequest to the attorney representing the state for thenotice”); see also Lloyd v. State, 97 S.W.3d 808, 810(Tex. App.—Texarkana 2003, pet. ref’d)(“The statute… only requires the State to give notice if the defendanttimely requests it”).18 Williams v. State, 933 S.W.2d 662, 666 (Tex. App.—Eastland 1996, no pet.).19 See Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App. 1998); Simpson v. State, 991 S.W.2d 798, 801(Tex. Crim.App. 1998); Randon v. State, 107 S.W.3d 646,652 (Tex.App.—Texarkana 2003, no pet.); see also Tex.Code crim. Proc. Ann. art. 37.07, § 3(g)(Vernon Supp.2003)(notice requirement “applies only if the defendantmakes a timely request to the attorney representingthe State for the notice (emphasis added)); cf.Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App.1993)(interpreting request for notice under Rule404(b)).20 See Rodgers v. State, 111 S.W.3d 236, 245 (Tex.App.—Texarkana 2003, no pet.); Hartson v. State, 59S.W.3d 780, 787 (Tex. App.—Texarkana 2001, no pet.).21 See Ford v. State, 106 S.W.3d 765, 767 (Tex. App.—Texarkana 2003, no pet.); Henderson v. State, 29 S.W.3d616, 625 (Tex. App.—Houston [1st Dist.] 2000, pet.ref’d); Webber v. State, 21 S.W.3d 726, 731 (Tex.App.—Austin 2000, pet. ref’d).22 See Tex. Code Crim. Proc. Ann. art. 37.07, §3(g)(Vernon Supp. 2003)(“On timely request of thedefendant, notice of intent to introduce evidenceunder this article shall be given in the same mannerrequired by Rule 404(b). . . .The requirement under thissub§that the attorney representing the state givenotice applies only if the defendant makes a timelyrequest to the attorney representing the state fornotice”)..23 See Espinosa, 853 S.W.2d at 39 (interpretingrequest for notice under Rule 404(b)).24 See Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.—Corpus Christi 2000, no pet)((reasonableness ofState’s notice under 37.07, § 3(g) must be left to court’sdiscretion in light of all the facts and circumstances);Ramirez v. State, 967 S.W.2d 919, 923 (Tex. App.—Beaumont 1998, no pet.)(same).25 See Webber, 21 S.W.3d at 731 (defendant failed tofile a copy of his request for notice, and thus record didnot establish that a request was ever made).26 Tex Code Crim. Proc. Ann. art. 37.07, § 3(g)(VernonSupp. 2003).27 Tex. R. Evid. 404(b).28 See Patton v. State, 25 S.W.3d 387, 393 (Tex.App.—Austin 2000, pet. ref’d)(“There is no statutory meaningof ‘reasonable’ as provided in Rule 404(b), in the Codeof Criminal Procedure, or otherwise in the Rules of evidence”).29 Patton, 25 S.W.3d at 393; see also Henderson, 29S.W.3d 616, 626 (Tex. App.—Tex. App.—Houston [1stDist.] 2000, pet. ref’d); Sebalt, 28 S.W.3d at 822;Ramirez, 967 S.W.2d at 923.30 See Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim.App. 1995).31 See Johnson, 84 S.W.3d at 729.32 See Hayden v. State, 66 S.W.3d 269, 273 n. 16 (Tex.Crim. App. 2001)(noting that Rule 404(b) does notPAGE 16


JANUARY/FEBRUARY 2004require notice to be in writing); Chimney v. State, 6S.W.3d 681, 699 (Tex. App.—Waco 1999, pet. granted)(noticerequirement under Article 37.07 may becomplied with orally); Neuman v. State, 951 S.W.2d 538,540 (Tex. App.—Austin 1997, no pet.)(notice underRule 404(b) need not be in writing); Woodard v. State,931 S.W.2d 747, 749 (Tex. App.—Waco 1996, nopet.)(oral notice under 37.07 “reasonable”).33 See Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim.App. 2001).34 Id. at 272-73; see also Ortiz v. State, 4 S.W.3d 851,853 (Tex. App.—Eastland 1999, pet. ref’d)(prosecution’sfiling of criminal records with the court clerk,along with business records affidavit, provided defensereasonable notice of the State’s intent to introduce theprior convictions).35 Cf. Hayden, at 272.36 See id.37 See Waltmon v. State, 76 S.W.3d 148, 158 (Tex.App.—Beaumont 2002, no pet.).38 See Patton, 25 S.W.3d at 393 (“there is no brightline as to the number of days or amount of time alone[that] constitutes reasonable notice”).39 Sebalt, 28 S.W.3d at 822; see also Patton, 25 S.W.3dat 393.40 See Hernandez v. State, 914 S.W.2d 226, 234-35(Tex. App.—Waco 1996, no pet.)(interpreting Rule404(b)).41 See Henderson, 29 S.W.3d at 625 (notice duringtrial reasonable where State belatedly discovered priorconviction and notified defense immediately); see alsoSebalt, 28 S.W.3d at 822 (notice of intent filed threedays before reasonable where defense already hadstatement which contained references to extraneousoffenses); Patton, 25 S.W.3d at 393-94 (notice the daybefore trial “reasonable” because the State belatedlydiscovered the prior conviction and notified thedefense immediately); Ramirez, 967 S.W.2d at 923 (anamended notice, adding two additional prior convictions,filed three days before trial sufficient wheredefense counsel had seen the judgments in the State’sfile months before).42 See Johnson v. State, 84 S.W.3d 726, 728 (Tex.App.—Houston [1st Dist.] 2003, pet. ref’d).43 Cf. Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim.App. 1978)(interpreting the requirements of propernotice of enhancements); Sears v. State, 91 S.W.3d 451,454 (Tex. App.—Beaumont 2002, no pet.)(same).44 See McQueen v. State, 984 S.W.2d 712, 716 (Tex.App.—Texarkana 1998, pet. ref’d).45 Compare Hollins, 571 S.W.2d at 875; Sears, 91S.W.3d at 454 with McQueen, 984 S.W.2d at 716; seealso Johnson, 84 S.W.3d at 728 (enhancement allegingprior conviction by date, cause number, court, county,state, and offense, sufficient to comply with notice provision);Patton, 25 S.W.3d at 391 (in response to defendant’s37.07 request, prosecution identified prior convictionsby listing cause numbers, dates, and county ofconviction).46 See Ortiz, 4 S.W.3d at 853 (pen packets filed withthe court); Woodard, 931 S.W.2d at 749 (pen packetsand criminal history provided the defendant with oralnotification of prosecution’s intent to introduce themat punishment).47 Cf. Hollins, 571 S.W.2d at 875 (notice for purposesof enhancement should be sufficient as to enable theaccused to find the record and prepare for a trial of thequestion whether he is the convict named in therecord); Tex. Code Crim. Proc. Ann. art. 37.07, §3(g)(Vernon Supp. 2003)(notice for extraneous offensesmust include the date on which the alleged offensewas committed, the county in which the alleged crimeor bad act occurred, and the name of the alleged victim).48 See Tex. Code Crim. Proc. Ann. art. 37.07, §3(g)(Vernon Supp. 2003); see also supra at 12-15.49 Tex. Code Crim. Proc.Ann. art. 37.07, § 3(g)(VernonSupp. 2003).50 See Burling v. State, 83 S.W.3d 199, 202-03 (Tex.App.—Fort Worth 2002, pet. ref’d)(State substantiallycomplied with statute where it listed three month periodfor alleged bad acts); Sebalt v. State, 28 S.W.3d 819,822 (Tex. App.—Corpus Christi 2000, no pet.)(failureto provide names, dates, and counties of extraneousoffenses not unreasonable where notice includedcause numbers of indictments involving unadjudicatedoffenses and counties in which indictments had beenreturned); McQueen v. State, 984 S.W.2d 712, 716 (Tex.App.—Texarkana 1998, no pet.)(failure to list county ofoffense not unreasonable where offense was a companioncase to case being tried, and listed the victim, apolice officer, and the date of the offense, the samedate as the offense on trial); Hohn v. State, 951 S.W.2d535, 537 (Tex. App.—Beaumont 1997, no pet.)(substantialcompliance sufficient where State failed to listspecific date, but verbally informed defendant that actswere alleged to have occurred over specific threemonth period); Splawn v. State, 949 S.W.2d 867, 871(Tex. App.—Dallas 1997, no pet.)(notice substantiallycomplied with statute where prosecution listed severalmonth periods over which alleged offenses occurredand list specific geographical landmarks rather thancounty in which alleged extraneous offenses tookplace); Nance v. State, 946 S.W.2d 490, 493 (Tex.App.—Fort Worth 1997, pet. ref’d)(failure to list countydid not render notice unreasonable where offensewas pending in a court of record and defense hadannounced ready for trial), and the date of the offense);but see Roethel v. State, 80 S.W.3d 276, 280 (Tex.App.—Austin 2002, no pet.)(notice insufficient whereState merely declared that unadjudicated acts occurredagainst the defendant’s sister when they were children,thus giving no notice of the dates or counties of thealleged offenses).51 Cf. Hollins, 571 S.W.2d at 875 (notice must be sufficientas to enable the accused to prepare for trial onthe issue);Tex. R. Evid. 405(a).52 See Patton, 25 S.W.3d at 394; McQueen, 984 S.W.2dat 716.53 See Tex. Code Crim. Proc. Ann. art 37.07, §3(g)(Vernon Supp. 2003); see also 41 George E. Dixand Robert O. Dawson, Criminal Practice andProcedure §22.104 (Texas Practice 1995)(“Article37.07 does not address the consequences of theState’s failure to provide the required notice or ofincomplete notice”).54 Roethel v. State, 80 S.W.2d 276, 281 (Tex. App.—Austin 2002, no pet.).55 See Apolinar v. State, 106 S.W.3d 407, 414 (Tex.App.—Houston [1st Dist.] 2003, pet. granted); Nance v.State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth1997, pet. ref’d).56 Cf. Self v. State, 860 S.W.2d 262, 263-64 (Tex.App.—Fort Worth 1993, pet. ref’d)(trial court did not err inoverruling objection to extraneous offense evidenceafter prosecution had failed to provide notice of intentto use the evidence; court provided defendant with ahearing outside the presence of the jury, and permitteddefendant to cross-examine prosecution witness).57 See Roethel, 80 S.W.3d at 281.58 See id.Continued on page 19PAGE 17


THE TEXAS PROSECUTORFOCUS ON …By Ken SparksCounty & District Attorney in ColumbusToo many cases andnot enough chemists!A prosecutor’s simple question about testimony byaffadavit sparks new legislation that promises to save thestate money and prosecutors time.New Code of CriminalProcedure Article 38.41,allowing the testimony by affidavitof a chemist who analyzes evidenceon behalf of a law enforcement agency,found its way into our statutes because aprosecutor on my staff who used topractice law in Virginia asked a question.Assistant County Attorney JayJohannes and I were preparing for a jurytrial in a major drug delivery case andagonizing over whether we would beable to secure the attendance of thechemist who had to travel more than 90miles to testify. The chemist told us hehad been subpoenaed in eight othercounties on that same date. We experiencethis problem every time we need achemist to testify.We were in a quandary because weare part of a four-county judicial districtand have only eight felony jury trialdates per year. The defense attorney hadbeen dodging earlier trial settings, andwe did not want to reset this case. Jayasked, “Why don’t we just file an affidavit?”He explained that Virginia had alaw allowing the admission of a certificateof analysis to which the chemistattests. I explained, “This ain’t Virginia,”and went on with trial preparations.The chemist managed to juggle hisappearances and testify in our case. Afterthe trial was over (55-year sentence,thank you very much for asking), Jayshowed me the Virginia statute. Ithought it over and assigned the matterto my intern, Dawn Dittmar, a law studentworking in my office for free to getsome experience and an additional lineon her resume. She researched the issueand handed me a three-ring bindercontaining the laws of 19 other stateswith similar statutes. The SouthCarolina statute also authorized the filingof an affidavit to prove chain of custody.I analyzed all the statutes and cobbledtogether the best parts of each oneand drafted what became CCP Articles38.41 and 38.42. I drafted sample affidavitsto be included in the statutes toprevent appeals related solely to the sufficiencyof the affidavits.Other than solving the problem ofchemists needing to be in several countiesat once, I drafted this legislation toalleviate a backlog in the analysis ofdrugs submitted to the DPS and otherlabs. DPS chemists spent 4,018 hoursmaking 798 court appearances in controlled-substancecases in 2002. Whilechemists were in court, drugs were notanalyzed, resulting in a backlog. Thisbacklog keeps prisoners in jail awaitingthe results of lab reports before cases canbe presented to a grand jury. It mademuch more sense for a chemist to analyzecases instead of driving to variouscounties and appearing in court to testifyto the uncontested identity of a controlledsubstance.The chain-of-custody affidavit wasimportant in rural counties like minethat experience a lot of turnover withunderpaid peace officers who go elsewherefor higher pay. Many times theofficer played a minor role in the caseand simply dropped some evidence offat the evidence room. Trying to get theofficer back for five minutes of trial testimonywas a struggle.PAGE 18


JANUARY/FEBRUARY 2004All my reasoning and a draft of thelegislation were sent to various prosecutorsin my area for comments and suggestions.Then TDCAA’s own legislativewhiz, Shannon Edmonds, reviewed mywork and helped me polish it somemore. Shannonobtained sponsors inthe House and Senateand helped shepherdthe bill through thelegislative process.Jay and Iappeared and testifiedbefore the SenateCriminal Justice committee.Prior to ourtestimony we wereessentially told that wecould agree to a substitutebill allowing anobjection by thedefense, or the legislationwould not bevoted out of committee. Thinking thathalf a loaf was better than none, weagreed. It was voted out of the Senatecommittee and sent to the House ofRepresentatives. The DPS provided thecommittee with its estimate that adoptionof the legislation would save theState over $190,000 annually.After the publicity about theHouston Police Department laboratorycreated an unfavorable climate andalmost derailed the bill, it was back ontrack to be adopted when theDemocrats fled to Oklahoma. On theabsolute last day that legislation couldbe considered, Shannon e-mailed meThe chain-ofcustodyaffidavit wasimportant inrural countieslike mine thatexperience alot of turnoverwith underpaidpeace officerswho goelsewhere forhigher pay.with the good news that it had passedthe House. For all his hard work, myreply e-mail simply said, “Shannon, youda man!”I am presently working with theDPS to combine the lab report, certificateof analysis, andchain-of-custody affidavitinto one documentthat could be sent out ineach case just as the labreport is sent now. Uponreceipt, the prosecutorshould file the affidavitwith the clerk of thecourt and send a copy tothe defendant’s attorneywith notice of filing inanticipation of it beingadmitted without objection.Even when theyagree with the laboratoryanalysis and chain of custody,most defense attorneys are reluctantto stipulate when they are courtappointed.This legislation relieves themof the need to make that decision.I hope that widespread use of theseaffidavits will speed up the backlog ofcases awaiting analysis, eliminate resetsbecause chemists are spread too thin,and make our job easier to perform.Editor’s note: The legislation itself containslanguage for the affidavits. Find electroniccopies of them in Microsoft Word formaton our web site, www.tdcaa.com. Look inthe section titled, “Forms, Briefs, Et Al.”Continued from page 17Evidentiarynotice (cont’d)59 See id.60 See id.61 See supra at 8-10.62 Id.63 See id at 282.64 See Rodgers v. State, 111 S.W.3d 236, 248 (Tex.App.—Texarkana 2003, no pet.); Apolinar, 106S.W.3d at 414; Jounson v. State, 84 S.W.3d 726, 729(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d);Roethel v. State, 80 S.W.3d at 281; Brooks v. State,76S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.]2002, no pet.); Patton v. State, 25 S.W.3d 387, 394(Tex. App.—Austin 2000, pet. ref’d); see alsoMcQueen v. State, 984 S.W.2d 712, 716 n.2 (Tex.App. — Texarkana 1998, no pet.).65 See Roethel, 80 S.W.3d at 282.66 See id. at 281-82; see also Apolinar, 106 S.W.3dat 414.67 See Roethel, 80 S.W.3d at 282; see also Apolinar,106 S.W.3d at 414-15.68 See King v. State, 953 S.W.2d 266, 271 (Tex.Crim. App. 1997); see also Rodgers, 111 S.W.3d at248 (analyzing harm from admission of evidence inviolation of §3(g) as to whether the evidence hada substantial and injurious effect on the verdict);Johnson, 84 S.W.3d at 730 (same); Brooks, 76S.W.3d at 426 (same); Waltmon, 76 S.W.3d at 161(same).PAGE 19


THE TEXAS PROSECUTORTHE AGONY COLUMNBy Rick MillerCounty Attorney in BeltonConfidentiality rulesKeeping files in your office on the QTIt’s tempting to tell members of thepublic, “I know nothing,” just likeSgt. Schultz from “Hogan’s Heroes.”Or maybe you want to run off and tellyour friends everything about your caseload.But the preferred (and legal) routeis probably somewhere in the middle.One of the not-so-well-publicizedperks enjoyed by the prosecutor, if youwill, is being “in the know” when somethingof a criminal nature breaks in thecommunity. Maybe a high official wascaught in a compromising situationwith someone or something, or a majorcrime attracted wide media attention.Hey, isn’t there sometimes just a littlesmugness in having the “bottom skinny”on some occurrence that most othersdon’t? The other side of that coin, ofcourse, is that the gathering of suchinformation is not done for prurientpurposes: The prosecutor has to have allavailable facts to make appropriate decisionsabout the extent and manner ofprosecution.So, all of the information is collectedfrom various sources and put into afile, and there it sits, with a multitude offolks dying to see it: defense counsel,news media, and the downright curious,probably including your entire staff.Obviously, it is important that prosecutionfiles retain their confidentiality,subject only to the discovery mandatesof the Code of Criminal Procedure andthe whims of the trial court.But to what degree will it remainconfidential? You have seen the file.Likely members of your staff have seenthe file. The investigative sources whofiled the case and provided the informationthat went into the file certainlyknow what’s in it. What controlling factorsare there that insure the informationwill remain confidential?What you can and can’t sayThe Rules of Professional Conduct thatgovernTexas lawyers play a major role.Essentially, Rule 3.07 says that an attorney(both prosecution and defense) maynot make an extrajudicial statementabout a pending matter that a reasonableperson would expect would be disseminatedby the media, if the attorneyknows or reasonably should know thatthe information will have a substantiallikelihood of materially prejudicing theproceedings. Nor can an attorney counselor assist another person to makesuch a statement.Specifically, the prohibition onsuch statements extends to:• information about the character, credibility,reputation, or criminal record ofany party, suspect, or witness, or theirexpected testimony;• the possibility of a guilty plea in anincarceration case or the existence of orcontents of any confession, admission,or statement, or the refusal of a party tomake one;• the performance or refusal to performor results of any examination or test, orthe identity or nature of any physicalevidence expected to be presented;• any opinions as to guilt or innocence;or• information the attorney knows orshould know is likely to be inadmissibleas evidence and the release of which createsa substantial risk of prejudicing animpartial trial.If asked, what can an attorney mention?Generally the following is OK:• any information that can be found ina public record;• a statement that “an investigation is inprogress,” including the general scopeof that investigation, and the offense,claim, or defense involved;• the identification of the personsinvolved, except when prohibited bylaw;• trial scheduling information or theresult of any step in the litigation;• a request for assistance in obtainingPAGE 20


JANUARY/FEBRUARY 2004evidence and information necessary tothat request;• a warning to the community of possibledanger arising from the behavior ofthe person involved when it is reasonableto believe there is a likelihood of substantialharm to an individual or to publicinterest. If a suspect is unapprehended,a prosecutor can release informationnecessary to aid in his apprehension;• the identification, residence, occupation,and family status of a criminaldefendant;• the fact, time, and place of arrest of acriminal suspect; and• the identification of investigating andarresting officers or their agencies, aswell as the length of the investigation.So prosecutors’ first responsibility isto establish a formal policy for their staffrestricting what information can bereleased from an office file. Rule 3.09 ofthe Rules of Professional Conductspecifically tasks a prosecutor to exercise“reasonable care” to prevent employeesfrom making the sort of extrajudicialstatements that theprosecutor knows would beprohibited under Rule 3.07.Probably the easiest way to dothis is to have a formal policymaking the contents of everycriminal file strictly confidential, subjectonly to discovery procedures. If the prosecutordoesn’t personally assume theresponsibility, a spokesman for the officeshould be designated to handle mediaand other inquiries about pending casesin accordance with office policy.Open records requestsThat should take care of the media, butwhat about other attempts to peek intothat file, such as an open recordsrequest? Chapter 552 of theGovernment Code constitutes the state’sPublic Information Act, and the legislaturehas certainly underscored its intentthat any exceptions to disclosure of filesbe as minimal as possible. A prosecutor’soffice is considered a “governmentalbody” within the meaning of the PublicInformation Act, so it is subject to thestatute’s requirements. But there areimportant exceptions.A prosecutor’s office is not requiredto accept or comply with an openrecords request from an incarceratedindividual, unless that person’s attorneyis requesting information subject to disclosure.Also, an informer’s privilegeallows withholding otherwise disclosableinformation unless the informant’s identityis already known. Disclosure of acrime victim’s impact statement isabsolutely prohibited. Identification ofjuvenile crime victims may be withheld,and there are limitations under theFamily Code as to who may access juvenilerespondent records. Under new legislation,the identity of a subject of anon-disclosure order may not bereleased.The prosecutor needs to be fairlyfamiliar with the vagaries of the convolutedChapter 552. For example, Section552.108 requires the disclosure of “basicinformation” on request about an arrestedperson, an arrest itself, or the offenseitself. But this does not include detailedinformation dealing with the detection,investigation, or prosecution of a case ifthat information’s release would “interfere”with those tasks. This includes theinformation found on the front page ofa police offense report. But there mustbe released the types of information thatare considered to be front page offensereport information, even if found on asubsequent page to the report. Theremust be a “detailed description” of theoffense, although this refers to a broaddescription of the offense, rather thanevery item of evidence available to theprosecutor.If there is a question about whetheror not information from a pendinginvestigation should be disclosed, theProbably the easiest way to abide by Rule 3.07is to have a formal policy making the contentsof every criminal file strictly confidential,subject only to discovery procedures.prosecutor must, within 10 days ofreceipt of a written request, make a formalrequest of the Attorney General’soffice for an opinion. The letter to theAttorney General must have attachedthe material for which access is soughtContinued on page 9PAGE 21


Investigators School AgendaHere’s the first chance to satisfy your mandatory legislative training requirementslong before the August 31, 2005, deadline! At this year’s Investigators School, weoffer Cultural Diversity (3939), Special Investigative Topics (3232), and Identity Crimes(3277).All Texas peace officers must complete these trainings before the 2005 deadlineto retain their licenses.MONDAY,FEBRUARY 910:00 a.m. Registration opens.1:00 p.m. Welcome & Course Introduction1:15 p.m. Introduction to SCAN:Scientific Content AnalysisJames E. Wiggins, Jr., CA Investigator in Montgomery County5:00 p.m. Adjourn5:30–7 p.m. Opening ReceptionTUESDAY,FEBRUARY 109:00 a.m. Cultural Diversity (3939)Sgt. Jack DeMuynck, Texas DPS in AustinNoon Awards Lunch (provided by TDCAA)1:30 p.m. Special Investigative Topics: FamilyViolence, Child Abuse, Sexual Assault,& Sex Offender Characteristics (3232)Sgt. Hilan Priddy, Texas DPS in Austin5:00 p.m. AdjournWEDNESDAY,FEBRUARY 119:00 a.m. Digital Photography/Videography forInvestigatorsGene Henderson, Crime Scene Videographer with Texas DPSDigital Photography WorkshopGene Henderson, Crime Scene Videographer with Texas DPSA hands-on workshop on digital photography. Learn how todocument a crime scene and other evidence digitially, thenpresent it at trial. Available Wednesday at 1:30 p.m.,Thursday at 9 a.m., and Thursday at 1:30 p.m.PAGE 22GENERAL SESSIONBREAKOUT SESSIONS1:30 p.m. The Prosecutor’s Office Rolein ExhumationsSgt. Kenny Ray, Texas Rangers5:00 p.m. AdjournTHURSDAY,FEBRUARY 129:00 a.m. Demonstrative EvidenceLisa Tanner, Assistant Attorney General10:30 a.m. Investigating & ProsecutingIntoxication OffensesWarren Diepraam, Assistant District Attorney in Harris County11:45 a.m. Candidate Forum & Election Lunch(provided by TDCAA)1:30 p.m. Survival Skills for DA & CAInvestigatorsJack Schumacher, DEA in Houston5:00 p.m. AdjournFRIDAY,FEBRUARY 139:00 a.m. Identity Crimes (3277)Sgts. Hilan Priddy and Jack Demuynck, Texas DPSNoon AdjournFirearms Training Systems (FATS)Tony Wells, FATS, Inc.Firearms Training Systems, Inc., is a leading worldwideproducer of interactive computer simulation systems designedto train in the handling and use of small arms. Learn on stateof-the-artfirearms simulation equipment. AvailableWednesday at 1:30 p.m., Thursday at 9 a.m., andThursday at 1:30 p.m.Flying While ArmedWade “Woody” Woodruff, DA Investigator in Harris CountyPeace Officers who must travel armed as a ticketed passengeron commercial aircraft must complete this FAA-mandatedtraining. In this breakout, learn proper methods fortransporting firearms and procedures to follow when flyingarmed. Available Wednesday at 1:30 p.m. and Thursdayat 1:30 p.m.


TDCAA Registration FormPersonal informationNameInvestigators School at the Austin Doubletree HotelFebruary 9–13, 2004Name preferred on badgeCode JF PROfficeTitleOffice address City ZIPPhoneE-mail addressFax[ ] Please check here if we do not have your permission to distribute your e-mail address to course attendees.Reimbursement for eligible prosecutors and office staff: Under our grant,TDCAA can reimburse only eligible prosecutorsand prosecutor office employees up to $40 per night for four nights’ stay at a hotel, up to $6 a day for breakfast, $10 a dayfor lunch, and $14 a day for dinner for meals not provided at the conference.TDCAA can not reimburse for travel, hoteltax, parking, taxi costs, or other extraordinary expenses.Registration: Eligible prosecutors and prosecutor office employees are entitled to attend all training andSeminar feeshave changed!Please read theseoptionscarefully.receive applicable expense reimbursement for a $135 registration fee, which will be deposited intothe Court of Criminal Appeals’ Texas Prosecutor Assistance Project (TPAP) account (our grant)and used to fund other TPAP training events.The reimbursement policy is set out above.Association package: A TDCAA fee of $115 is each participant’s share of additional costs oftraining over and above what the grant allows (for example, excess costs of on-site meals andassociation overhead). In addition, this fee entitles participants to discounted hotel rates (up to $321in hotel savings over four nights for this seminar) and to attendance at all association functions, includingMonday night’s opening reception and lunches on Tuesday and Thursday. Conference attendees who payonly the $135 registration fee are entitled to attend all training but are not entitled to association functions ordiscounted hotel rates, which TDCAA secured in negotiating the association package.Hotel information: If you have paid the association package fee, identify yourself as a TDCAA conference participant toobtain the discounted rates.Fee (please check one)❑ $135 registration fee + $115 association fee ($250 total; this option includes all training,social functions, meals, support of the association, and up to $321 in hotel discounts)❑ $135 registration fee ONLY (includes only training activities; does not defray other association costs)❑ $350 for nonmembers (this option includes all training, social functions, meals, and up to $321 in hotel discounts)Curriculum (please check one for each column)Wednesday afternoon Thursday morning Thursday afternoonGeneral Session: Exhumations ❏ General Session: Demonstrative Evidence ❏ General Session: Survival Skills for Investigators ❏Breakout I: Digital Photography Workshop ❏ Breakout I: Digital Photography Workshop ❏ Breakout I: Digital Photography Workshop ❏Breakout II: Firearms Training Systems (FATS) ❏ Breakout II: Firearms Training Systems (FATS) ❏ Breakout II: Firearms Training Systems (FATS) ❏Breakout III: Flying While Armed ❏(none) ❏ Breakout III: Flying While Armed ❏Fax this form to 512/478-4112 or mail it to 1210 Nueces St.,Austin,TX 78701. Or fill it out online at www.tdcaa.com.PAGE 23


THE TEXAS PROSECUTORPAGE 24KEY PERSONNEL SECTIONBy Dianna BooherCEO of Booher Consultants in DallasExcerpted from E-Writing: 21st-Century Tools for EffectiveCommunication by Dianna Booher (Simon & Schuster/Pocket Books, 2001) and reprinted with permissionE-mail etiquetteHow to use this convenient, speedy, but often trickymedium for effective office communicationWe began the last millenniumin unity and ended it in isolation.At the turn of the20th century, people gathered in townhalls to talk politics, went to the theaterto watch silent movies, heard news fromthe same few radio broadcasts, boughtgifts and tools at the general store, readabout new trends from the same monthlymagazines, and studied all subjects inthe same classroom. At the dawn of the21st century, we talk politics in virtualchat rooms, select our movies for homeviewing from any of 500 television stationsor the corner video-rental shop,buy our gifts and tools from the paper oronline catalog, hear our news on televisionwhile in the bathroom, read aboutnew trends while in Latvia with our laptopconnection to the Internet, andstudy our online courses at home aloneat midnight.In such a world of emotional disconnection,there’s a growing sense ofdiscontent. Customers and coworkerslong to be treated as special, importantindividuals. An automated tracking systemthat responds to our log-on with“Hi, Bob. Welcome back. The last timeyou visited, you ordered X” does notexactly leave us with a warm, fuzzy feeling.It has been a long time since havingour name inserted in the middle of adirect-marketing letter impressed us.In an age of impersonal “customization,”customers and clients want personalcommunication. They want a liveperson to send them individual e-mailwith an answer to their specific questionor a suggestion for their specific problem.To confirm the phenomenon, youhave only to take a look at your rmailboxto see how many chain letters, jokes,inspirational stories, and poems get forwardedto you by friends, coworkers,and customers. These are attempts tosay, “Let’s connect. Let’s share a laugh ora tear. Is anybody out there? Do youremember me?”The e-mail, letter, or proposal writ-ers who can make a positiveemotional connection with theirwriting will win coworkers’ andcustomers’ attention, business,goodwill, and loyalty.1Know when to send an e-mail, fax, or formal letter orreport. Impact, reference, speed, anddistribution are the key criteria. Let’stake them one at a time:Impact. It’s an image decision: tuxor blue jeans. Protocol may demand aformal report or letter. When introducingyourself, your product, or your serviceto a new organization or to a newindividual within the organization, mostpeople still expect a formal letter, proposal,or other literature to arrive inhard copy, to be read at their leisure. Inother words, if you’re writing to theCEO, he or she will generally consideran e-mail a breach of etiquette as a firsttimecommunication from an outsider.Protocol aside, consider the look.Prefer to prepare a formal report or letterif the content requires editing andformatting capabilities not available onyour e-mail software or that of the reader’s.Finally, consider the formality orinformality: Because e-mail is commonlyused for routine day-to-day business,the recipient doesn’t attach as muchimportance to an e-mail message as to aformal report, letter, or proposal.Reference. Will the recipient needto find your information three yearsfrom now? With most software pro-


JANUARY/FEBRUARY 2004grams, you can easily delete all e-mailolder than a preset date with a few keystrokes—orroutinely during the archivingprocess. Although e-mails can bekept indefinitely, most users don’t botherto make an exception with their filecommand on a document-by-documentbasis.Speed. Yes, you can send a reportacross town or cross-country by courierin a few hours. But e-mail takes mereseconds. (Of course, when the e-mailmay get read is an altogether differentmatter.)Distribution. Yes, you can make 50copies of a 20-page report and distributeit around the building or fax it crosscountry.But that’s definitely moreexpensive and more trouble than hittinga few keys. Second, consider the ease ofa recipient forwarding your informationto others. That’s easier done (with youcontrolling the quality of the “reprint”)by e-mail.Impact, reference, speed, distribution.Consider each in making yourdecision about which medium to use e-mail for a specific message.2Know when to phone instead ofwriting e-mail or letters. Prefer tophone when:• You need an immediate response. (Youcan’t guarantee when someone willanswer e-mail, but if you catch him orher answering the phone, you may getan immediate response.)• You want to hear someone’s voice toneto “read between the lines” about themessage, information, personal commitment,and so forth. People are typicallyless on guard when speaking than whenwriting.• You need to ask questions and negotiateissues, and the answers to the questionsdetermine your immediate directionin the negotiations.• You are concerned about the privacy ofyour comments.Prefer e-mail to the phone when:• The information is complex and willwarrant repeating (rereading).• A written copy will be more convenientfor later reference.Nothing makes another person asangry about the wrong choice of mediaas the following situations: 1) whensomeone leaves a voice mail withdetailed information that needs to betranscribed almost in its entirety; or 2)when someone e-mails about a situationthat has too many discussion points,requiring either an ongoing saga or anextended, time-consuming response.3Understand the dangers of e-mail.For all its convenience, e-mail has afew drawbacks. Consider them carefully.First, humor doesn’t travel well in typicale-mails—unless authored by skilledcomedy writers. In the absence of toneof voice, facial expression, and body language,readers may interpret your flippantor witty remark as literal and stupid.Second, you risk losing control ofwhat you’ve written. Yes, others shouldnot forward your sensitive messageswithout your permission. But they oftendo. Forwarding other people’s e-mailtempts people of even the highestintegrity.Two good questions to ask yourselfbefore putting anything in e-mail: 1)What might happen if this e-mail wereforwarded to everyone in the company?2) What might happen if a client or suppliersued us, and all our e-mail recordswere subpoenaed for court? Commityour information and opinions to e-mailaccordingly.4Follow the rules of e-mail etiquetteto create the proper image. Eventhough technology changes rapidly, therules of business and social etiquette donot. It has always been considered rudeto interrupt private conversations, toconduct private conversations in front ofother people, to monopolize a conversation,and to push your business wares ina social setting. These same rules applyto e-mail, Internet, and intranet settings.Additionally, etiquette in any situation—e-mailincluded—involves standardcommon-sense considerations.Avoid remarks that are vulgar, repetitive,and verbose.5Check multiple e-mail accountspromptly. When you are in a jobtransition, when you want to separateyour social correspondence from that ofyour business, or when you’re on theroad, you may make use of multiple e-mail boxes. That’s understandable andinexpensive.But if you have multiple e-mailaccounts for whatever reason, checkContinued on page 26PAGE 25


THE TEXAS PROSECUTORContinued from page 25your mail on all accounts promptly. Youmay know that one address is your primarymailbox, but others may not. Andbecause the medium is e-mail, sendersexpect a much fastere response than alook-see once a week.6Avoid using all uppercase or all lowercase.Writers use either all uppercaseor lowercase because they think it’sfaster to keyboard without hitting theShift key. They’re correct—it is faster forthe sender … but not for the reader.Which of the following two e-mailsdo you prefer to read?DO NOT STOP BY. FYI I’MLEAVING FOR THE NEA ASAP VIALA. I’M HOPING TO CONNECTWITH JOHN IN INTERNATIONALCOFFEE SHOP. SO IF HE CALLSHAVE SUE TELL HIM WHERE OFFAIRPORT ROUTE. ETA STILL NOTCLEAR. SEMINAR ROOM TBD.TELL HIM TO BRING THE MDGMODEL WITH HIM. MAY NEEDTO DEMO.do not stop by. fyi i’m leaving for thenea asap via la. i’m hoping to connectwith john in international coffee shop.so if he calls have sue tell him where offairport route. eta still not clear. seminarroom tbd. tell him to bring the mdgmodel with him. may need to demo.Neither would be immediately clear.Uppercase and lowercase letters are readingaids that signal a reader about sentencebeginnings (new thoughts), propernouns, and acronyms. Besides makingyour e-mail more difficult to read, alluppercase is interpreted as shouting, andall lowercase as lazy.7Never double-space your entire message.Readers need to grasp sentences,paragraphs, and lists as singleunits; double-spacing on the screenmakes that more difficult to do.Double-spacing between paragraphs,however, aids readability—forthe same reason just mentioned.8Highlight responses in color to aidreading. Rather than simply hittingthe Reply key and keyboarding youranswers after each specific question orkeyboarding all your answers eitherabove or below the original message, useyour color pen to highlight yourresponses (provided, of course, youknow your other internal readers’ e-mailprograms support color). Your answerswill stand out dramatically.9Cut and paste rather than hit “reply”on long, continuing e-mails. Don’tmake recipients read through long linesof their previous e-mail to find yourtwo-sentence reply. Delete all the otherbackground or explanatory informationoriginally sent and leave only the pertinentquestions, along with your responses.Or cut the pertinent questions andpaste them into a new e-mail, accompaniedby your responses.Although this point is not so criticalwhen you’re responding only to the originalwriter of the e-mail (because he orshe can more easily distinguish betweenthe original message and your responses),others who may be copied on yourreply will have difficulty separating theoriginal comments from the responses.Be wary of humor or sarcasm.10Humor is extremely difficult toconvey in writing because you do nothave the same body language “softeners”(a twinkle in the eye, a smile, a shrug ofthe shoulders) that provide interpretationclues in face-to-face conversations.That’s why comedy writers earn bigbucks. Either be sure your humor works,use the typical sideways smiley face as alabel, or don’t try your wit at all.Neither is sarcasm any more acceptablein e-mail than in face-to-face communication.Sending off a scathingattack with some disclaimer about how“the humor-impaired should skip thismessage” does not rule out offense andmitigate the criticism. In short, don’twrite anything in e-mail that you wouldn’twant forwarded to your CEO, yourcustomers, your family, or your friends.Allow cool-off time before send-a flame or any emotional11ingmessage. Sending a negative messagethat contains insensitive, insulting, negative,and critical comments is called aflame. Before you flame, cool off. Onceyou hit the Send button, you’re committed.As a safety valve, leave an emotionallycharged message in your out-box ordrafts folder for at least an hour or, better,a day. Ask yourself: Would I say thisface-to-face? Remember, there really is alive person on the receiving end of yourcommunication.Particularly, avoid flaming in public.If you must send a negative message tosomeone who originated a message, doPAGE 26


JANUARY/FEBRUARY 2004not post your flame or send it to anentire distribution list. Even in the oldTV westerns, the cowboys always“stepped outside” to have a showdown.Others really do not appreciate beinginvolved in a personal debate or insultinge-mail duel.Use receipts sparingly. In urgent12matters, when you must beassured that someone has read your e-mail, use of a receipt is appropriate.However, generally, readers interpret areceipt to mean “I got you. Now I haveproof that you received this message, sodon’t give me any excuses for notresponding or doing what I asked.”A good rule of thumb is to usereceipts only for emergencies.Don’t forward sensitive materials13or copyrighted articles withoutpermission. Copyright on e-mailbelongs to the writer of the message, notthe recipient. If there’s any doubt inyour mind about forwarding anotherperson’s e-mail, don’t.Granted, in our routine business e-mail, it’s standard practice to forward e-mail to someone else who can or shouldhandle a situation (or know about it).But standard practice is not legal practice.Ask yourself these filter questionsabout e-mails you plan to forward: 1)Will the author be upset that I forwardedthe message? 2) Does this informationcontain a copyright note? It’s notnecessary for the author to place a copyrightnote on a document for it to havelegal protection. But you can be surethat when there’s a formal copyrightnote, the author is dead serious aboutcopyright infringement.If there’s a question about forwardingsomeone’s e-mail, reconsider beforeyour risk ire and the law.If you don’t have something to14say, don’t say it. Not all e-mailsdeserve responses. On the street, whensomeone you know speaks to you, etiquettedictates that you return the greeting.And if you’re from some particularlyfriendly parts of the country, peoplegreet and return greetings—and evenengage in small talk over an extendedperiod—from total strangers.Not so with e-mail. Don’t reply to amessage unless you have something toadd. If you’re “tagged,” don’t feel asthough you’re obligated or expected toreply.Some of the biggest time-wasters aresilly responses, such as in the followingsituation with an e-mail from Bryan tohis coworkers:“I’m considering switching softwarefor handling our geological maps. I’minvestigating Brand XYZ from ABCCompany. If you have any experiencewith this software, I’d appreciate anopinion about it. Thanks.”More than 60 responses floodedBryan’s box, and they all basically said,“Never heard of it.”If you don’t have anything to say,don’t say it.Use a signature block or line. The15signature line identifies who youare and includes alternative ways to contactyou (usually phone and fax numbers).When your return address is theonly item identifying the messagesource, your signature block may be allthat people find to identify you.You may need to use different signatureblocks for internal and external correspondence.If you’re sending e-mailoutside your organization, identify yourselfcompletely, stating your positionand the name of your organization. Forinternal use, you may mention onlyyour department and sometimes includea descriptive line about the key projectyou’re leading if most of your e-mailrelates to your role in that capacity.And, in fact, the signature blockcontaining a full name may be the onlyway the recipient can decipher thename. With an e-mail address likepconeil@aol.com (Is it Paul Coneil orP.C. O’Neil?), tray@hotmail.net (is it T.Ray or someone with the first nameTray?) or johnspeaks4&2@compuserve.com,readers may have difficultyrecognizing even a friend’s name.To avoid this difficulty, be sure toenter your full name, as well as your e-mail address. Both should appear in thesender line.To go one step furhter, use the “vcard”(virtual card—this contains itemssuch as your full name, title, organization,phone, or fax). Keep lookingthrough your e-mail program optionsuntil you find this great little feature.This small file, automatically attached toyour outgoing e-mail, can populate acontact record with all your contactinformation for the benefit of the personreceiving your message.Continued on page 28PAGE 27


THE TEXAS PROSECUTORContinued from page 27In other words, as a customer, if I e-mail a company about a product, this v-card information would automaticallygo into the company’s customer databasein the correct fields so that I’d be onthe mailing list for the next catalog. Anice feature for both parties.Limit emoticons or smileys.16Emoticons composed of variouskeyboard characters to create faces ofemotion equate to e-mail slang.:) Smile:( Sad, anger, disappointment;) Winking, just joking:-D Shock or surprise;-} Leer:-Q Smoker:-@ ScreamFor trivial e-mail, emoticons may beappropriate. But when communicatingabout serious topics to important people,they detract from your authorityand distract the reader.And as a second filter, if you findthat you need to underscore the emotionwith a smiley, make sure that a smileywill do the trick. A smiley won’t disguisean offensive remark as a joke. And thereis a bigger danger: After almost a decadeof e-mail, emoticons are proliferating,and their meanings are by no means universal.Act on e-mail promptly, or notify17others that you’re unavailable.With the speed of transmission, usersassume speedy replies. Whether a goodor bad assumption, people appreciateknowing when you will be offline forextended periods.Some e-mail programs have built-inout-of-the-office features. Others donot.You have two choices: Use the autoresponderthat tells people you’re offline.(In preparing your automatic responseto incoming e-mail, you can be as specificor vague as you want about if andwhen you’ll respond.) Or have someoneelse check your e-mail and respond inyour absence.Although there are exceptions inevery culture, generally, if you’ll not beresponding to your e-mail for more than48 hours, use the auto-responder to letothers know you have not read theirincoming messages.Don’t post “action or else” mes-if action is irreversible. For18sagesyears, businesspeople have used the “If Idon’t hear from you, I’ll assume that X,and I will go ahead and do Y.” Theycome to that decision when dealing routinelywith someone who often stalls ondecisions and actions. If you can’t reversethe action, and if you care that the otherperson may not like the action you’reproposing, ask for confirmation of yourmessage. Otherwise, you may mistakethat person’s silence during a three-weekvacation as agreement.Judge reading time, not screen19space or page count, to determinelength. Screen space and paper arecheap; reading time is expensive. Foryears, you’ve probably heard people say,“Put it on one page. My boss won’t readmore than one page.” The concept iscorrect; the attempt, admirable. To beconcise is good. But to be read is better.In a false attempt to be brief, writershave frequently crowded their words,omitting paragraph breaks, headings, orbulleted lists to save a line or two. Theyoften accomplish the task of gettingeverything to a single screen or page—and lose the ability to win over the reader.Short paragraphs, lists, and informativeheadings all aid readers in skimmingTo be concise is good. But to be read is better.your document quickly, tempting themto keep reading until the end.In determining the length of yourdocument, make reading time the criterionfor brevity, not word count, screens,or pages used.Author/speaker Dianna Booher is CEO ofBooher Consultants, a Dallas-based communicationstraining firm. Her programsinclude communication (written, oral,interpersonal, customer service, gender, listening,meetings, and conflict) and lifebalance/productivity. To order a copy of thebook, call 817/868-1200 or visitwww.booher.com.PAGE 28


JANUARY/FEBRUARY 2004AS THE JUDGES SAW ITBy Betty MarshallAssistant State’s Attorney in AustinThe top cases decided by the Court of Criminal Appealsfrom the term’s beginning through December 10, 2003.Questions1Philip Arthur Chapman was on probationand participating in a requiredsex offender group therapy programwhen he approached the therapist andconfessed to molesting two young girls.He repeated the admissions to his paroleofficer and then to a police officer withoutinvoking his Fifth Amendment rightagainst compelled self-incrimination.Before trial on the new charges, heclaimed that his admissions should besuppressed because he thought he had toreveal his sexual history or risk jeopardizingthe completion of his probation.Were Chapman’s statements admissible?______ yes ______ noDuring direct, M.S. testified that2aher uncle, Kevin Sauceda, threatenedher with a gun and a knife beforesexually assaulting her. On cross, shesaid she thought she’d told the CPS caseworkerabout the weapons during avideotaped interview. When Saucedatold the trial court that he planned tocall the caseworker to testify that M.S.did not tell her about the weapons duringthe videotaped interview, the trialcourt said that the entire videotape,including references to extraneousoffenses, would come in if the caseworkertestified. Sauceda then rested withoutcalling the caseworker, and the videotapewas not admitted into evidence.Was the entire videotape admissibleunder Rule 107?____ yes ______ noCan Sauceda complain on appeal2babout the videotape’s admissibilityeven though it was never admittedinto evidence?______ yes ______ no3At Gary Don Hollen’s felony DWItrial, he stipulated to two priorDWIs and then asked that the stipulationnot be mentioned during the readingof the indictment, voir dire, openingand closing arguments, the presentationof evidence, or in the jury charge. Doesa stipulation impermissibly focus thejury’s attention on the defendant’scharacter for DWI?______ yes ______ noAfter he drove his 18-wheeler4afull-speed into a line of carsstopped at a construction site, RaymondManning was charged with manslaughterfor recklessly causing death by,among other allegations, “driving amotor vehicle without sufficient sleep orby the consumption of a controlled substance.”At trial, the State offered evidencethat 0.15 milligrams of a cocainemetabolite, benzoylecgonine, had beenfound in Manning’s blood, whichshowed that Manning had ingestedcocaine but would no longer be feelingany of its effects. Was the cocainemetabolite evidence of an extraneousoffense or evidence of the chargedoffense?______ extraneous______ charged offenseWas the cocaine metabolite evi-unfairly prejudicial4bdencebecause it had the potential to impressthe jury in some irrational but neverthelessindelible way?______ yes ______ no5After his arrest for DWI, TheodoreWilliams was videotaped as he spokewith officers at the local jail. The videotapewas later admitted into evidence toshow that Williams’ speech was slurred.Continued on page 30PAGE 29


THE TEXAS PROSECUTORContinued from page 29To rebut this, Williams asked the trialcourt to allow him to provide the jurywith a recording of his normal speechwithout having to take the stand and becross-examined. Can a defendant offer avoice exemplar without subjecting himselfto cross-examination?______ yes ______ noDuring voir dire at Danielle6aSimpson’s capital murder trial,the trial court questioned venire memberBrenda Looney about her ability tofollow the law in light of her personalviews about the death penalty and thengranted the State’s challenge for causewithout allowing defense counsel anopportunity to question Looney. Is thiserror subject to a harm analysis?______ yes ______ noIn the same case, one of the vic-sons testified at punishment6btim’sthat he and his family “unanimouslywant the death penalty.” The trial courtsustained Simpson’s objection andinstructed the jury to disregard butdenied a motion for mistrial. The prosecutorthen referred to the family’s wishesin closing argument. The trial courtagain sustained Simpson’s objection andinstructed the jury to disregard butdenied a motion for mistrial. Should thetrial court have granted a mistrial?______ yes ______ no7Undercover officer Mike Turner metMichael Sims at an outdoor site tobuy crack cocaine. When Turner askedSims where the cocaine was, Sims pointedto a foil-wrapped package lying in theroad near a tree and said, “It’s right therein that piece of foil.” Turner retrievedthe package and paid Sims $480. Wasthis delivery of cocaine by “actual transfer”or “constructive transfer?”______ actual transfer______ constructive transfer8After Laurin Stuart Laney wasdetained outside his trailer home andplaced in the back of a patrol car,Deputy Sheriff Brian Quiser saw twoyoung boys exit and then reenter Laney’sdarkened trailer. Laney admitted thatthe children were not his and that hehad previously been arrested for indecencywith a child. Quiser then enteredthe trailer and found one of the boys ina back bedroom, where he saw in plainview a piece of paper depicting youngboys engaging in deviant sexual contact.Was this warrantless entry and searchreasonable under the circumstances?______ yes ______ no9Travis County Sheriff’s DeputyMichael Mancias responded to a disturbanceat the Golden Nugget Moteland found Harlan Gene Melton, Jr.,running around on the motel rooftopholding an antenna. After Melton wasarrested for public intoxication, a plasticbag containing what appeared to be35–40 rocks of crack cocaine was discoveredsticking out of his shorts.Altogether, the rocks weighed 5.77grams, and the individual rocks thatwere tested contained cocaine. Not allthe rocks were tested, however. In orderto prove that Melton possessed 4 gramsor more of cocaine, does the State haveto test 4 grams or more of the rocks?______ yes ______ noBruce Wayne Shankle pled guilty10to aggravated sexual assault of achild in return for the State’s agreementto let the trial court assess punishmentfor both the sexual assault and an unadjudicatedburglary of a habitation. Thetrial court followed the plea bargain.Can Shankle appeal the trial court’s failureto admonish him that he would berequired to register as a sex offender?______ yes ______ noAfter Jeremy Mungia pled guilty11to murder and testified againstformer gang members, he was supposedto be sentenced to 10 years in prison.Instead, the trial court dismissed theindictment with prejudice, stating thatputting Mungia in prison would placehim “in constant danger and risk his lifedaily.” Can a trial court dismiss anindictment to protect a defendant fromretaliation without the State’s consent?______ yes ______ noPAGE 30


JANUARY/FEBRUARY 2004After Hal Vernon Parfait was12convicted by a jury of indecencywith a child by exposure and attemptedaggravated sexual assault of a child, thetrial court imposed consecutive sentencesof 20 years and life under§3.03(b)(2)(A) PC, which says that sentencesmay run consecutively for offensesarising out of the same criminalepisode if the convictions are for indecency,sexual assault, aggravated sexualassault, prohibited sexual conduct, orsexual performance. Does§3.03(b)(2)(A) include attemptedoffenses, so the trial court could cumulateParfait’s sentence for attemptedaggravated sexual assault?______ yes ______ noPrior to trial, Jesse Dan Cates13filed a motion to suppress on thegrounds that the affidavit used to obtaina search warrant for his home containeddeliberate falsehoods. The motion didnot contain any sworn affidavits orstatements, merely allegations that neitherCates nor his wife, Willie, knew ofany employed adult who could possiblybe the confidential informant who supposedlyvisited their home within 72hours of the search warrant affidavit,and that the only complaint made to thepolice was by Cates himself andinvolved criminal trespass, not drugs. Inthe absence of any sworn statements byCates, does a trial court abuse its discretionby refusing to go outside the “fourcorners” of the search warrant affidavitand allow Cates to call Willie to testifyat a hearing?______ yes ______ noFifteen days after he pled guilty14and signed a preprinted formcontaining a waiver of the right toappeal, Damian Demarcus Willis got adifferent judge to expressly and in writinggrant permission to appeal thedenial of a pretrial motion to suppress.Does a trial court’s permission to appealcontrol over a previous boilerplate waiverof appeal?______ yes ______ noAccording to Melvin James15Schroeder, he and his wife werearguing about gambling and moneywhen she pointed a gun at him. The twostruggled over the gun and Schroeder“blacked out or something” while hiswife was shot twice in the side and oncein the back. At his trial for murder, wasSchroeder entitled to a charge on thelesser included offense of manslaughter?______ yes ______ noKenneth Mark Brown did not16deny shooting his estrangedwife’s boyfriend, but he did deny havingany intent to kill. The trial courtinstructed the jury that “intent orknowledge may be inferred by acts doneor words spoken.” Does this instructionviolate art. 36.14 CCP by expressing anopinion as to the weight of the evidence?______ yes ______ noIsmael H. Padilla filed a petition17for a writ of mandamus in theCourt of Criminal Appeals to compel aDallas County trial court to appointcounsel for him on his motion for DNAtesting. Is the writ properly filed in theCourt of Criminal Appeals, or shouldPadilla have filed it in the Court ofAppeals?______ Court of Criminal Appeals______ Court of AppealsEctor County Deputy Sheriff18Keith Paquette was working withOdessa city officers on an investigationof Jose Franco Armendariz when he sawArmendariz commit a traffic offense.Because Paquette was undercover in anunmarked car, he radioed his observationsto Odessa police officers in thearea. Two city officers stoppedArmendariz inside Ector County butoutside Odessa city limits, and Paquettearrived at the scene a few minutes later.Was the stop illegal because it was carriedout outside the Odessa officers’ geographicjurisdiction?______ yes ______ noContinued on page 32PAGE 31


THE TEXAS PROSECUTORContinued from page 31Answers1Yes. While a probationer cannot beforced to choose between makingincriminating statements and jeopardizinghis conditional liberty by remainingsilent, Chapman was never told that hisprobation would be revoked if he choseto invoke his Fifth Amendment privilege,and he was never told he had to disclosehis sexual history. As a result, hewas never put in a “speak or be punished”penalty situation and, because hedid not affirmatively invoke his FifthAmendment right against self-incrimination,the trial court did not err indenying his motion to suppress.Chapman v. State, 115 S.W.3d 1 (Tex.Crim. App. 2003).No. The videotaped interview2abetween M.S. and the caseworkerwas not admissible because it was notnecessary to make the proposed live testimonyby the caseworker fully understood.Yes, Sauceda preserved error for2bappeal because the trial courtruled against his request to keep thevideotape out of evidence. Sauceda v.State, No. 612-02, delivered Sept. 10,2003.3No. The jury should be informed ofthe stipulation, as the two priors areelements of the offense of felony DWIwhich must be proven to the factfinder.Hollen’s trial court therefore did not errin admitting his stipulation into evidence;there was no error in the juryinstructions; and the priors were thelegitimate subject of voir dire, openingstatements, and closing arguments.Hollen v. State, 117 S.W.3d 798 (Tex.Crim. App. 2003).Charged offense. Since one of the4aallegations in Manning’s indictmentwas that his recklessness wascaused “by the consumption of a controlledsubstance,” evidence of a cocainemetabolite in his blood was evidence ofthe charged offense.No. The metabolite evidence was4bnot too prejudicial because it wasstrong evidence that Manning had consumedcocaine—evidence can be admissibleeven if it is not sufficient by itself toprove a fact of consequence—and theState had no other evidence to establishthis fact. Manning v. State, 114 S.W.3d922 (Tex. Crim. App. 2003).5Yes. A voice exemplar is an identifyingphysical characteristic, not testimony,whether the State or defendantoffers it. Therefore, a defendant whooffers a voice exemplar into evidencedoes not waive his Fifth Amendmentrights and does not subject himself tocross-examination. Williams v. State, 116S.W.3d 788 (Tex. Crim. App. 2003).Yes. A trial court’s error in deny-a party’s request to individual-6aingly question a venire member on principlesalready discussed by the trial court isa violation of art. 35.17 §2 CCP andthus subject to a harm analysis under thenonconstitutional standard set out inTRAP Rule 44.2(b). In this case,Looney said her personal feelings wouldoverride any evidence that was presentedduring trial and that she could neverreturn a verdict of death. As a result,there is a fair assurance that the trialcourt’s error did not influence the outcomeof the trial.No. The wishes of the victim’s6bfamily members as to the defendant’sfate fall beyond the parameters ofvictim impact evidence and are notadmissible. However, mistrial is appropriateonly for highly prejudicial andincurable errors, and the trial court didnot abuse is discretion in this casebecause the evidence in support of thejury’s verdict was substantial, includingthe facts of the offense, the brutal murderof an elderly woman, and Simpson’shistory of gang membership, breakingthe law, and committing violence againstpeople close to him. Simpson v. State,No. 74,029, delivered Oct. 1, 2003.7Both. A constructive transfer occurswhen the contraband is transferredthrough an intermediary or placed in aparticular location and the recipientadvised of the location. If the contrabandis already in place, the constructivetransfer is complete at the time thetransferor gives the instruction. Here,Sims constructively transferred thecocaine when he instructed Turner as toits location, and an actual transfer tookplace when Turner retrieved the cocaine.Sims v. State, 117 S.W.3d 267 (Tex.Crim. App. 2003).PAGE 32


JANUARY/FEBRUARY 20048Yes. Deputy Quiser’s action was justifiedunder the emergency doctrinebecause the entry was not related to theinvestigation of a criminal offense andQuiser not only had an immediate, reasonablebelief that he needed to act toprotect the child’s life and prevent seriousinjury but also limited his search tofinding the child and getting him out.Laney v. State, 117 S.W.3d 854 (Tex.Crim. App. 2003).9No, not where, as in this case, therewas testimony that the rocks ofcocaine were all found in one bag andthe jury could inspect the bag and itscontents to see if the rocks were similarin texture and appearance. From thisinformation, the jury could reasonablyinfer that the 35–40 rocks composed amixture of crack cocaine even if some ofthe rocks did not contain cocaine, andthe State was not required to test eachrock to determine if it containedcocaine. Melton v. State, No. 2052-02,delivered Oct. 15, 2003.No. A defendant has only a limit-right to appeal a guilty plea10edcase in which the trial court assessed apunishment that did not exceed thepunishment recommended by the prosecutorand agreed to by the defendant. Inthis case, Shankle and the State agreedon the charge Shankle would pleadguilty to, not the sentence he wouldreceive, but charge bargains affect punishmentby, for example, effectively puttinga cap on punishment at the maximumsentence for the charge not dismissed.Because Shankle pled guilty andhis punishment did not exceed that recommendedand agreed to, he had noright to appeal. Shankle v. State, No.2031-01, delivered Nov. 5, 2003.No. A trial court can dismiss a11case without the State’s consentwhen dismissal is necessary to neutralizethe taint of an unconstitutional violationof the defendant’s rights. In Mungia’scase, there was no violation of his constitutionalrights and the trial court couldhave protected him by rejecting the pleabargain and then ordering deferred adjudicationor finding a lesser includedoffense. State v. Mungia, No. 0665-02,delivered Nov. 5, 2003.No. Parfait was convicted of12attempted aggravated sexualassault under §15.01 PC, which governsattempted offenses, and §15.01 is notincluded in the list of offenses for whichsentences may run consecutively.Because the plain language of§3.03(b)(2)(A) unambiguously excludesattempted offenses, the trial court erredin cumulating Parfait’s sentences forindecency and attempted aggravatedsexual assault. Parfait v. State, No. 1786-02, delivered Nov. 12, 2003.Yes. Cates was entitled to an13opportunity to present testimonyor other evidence to prove his specificallegations of falsity. Nothing in Texaslaw requires a sworn statement; Cates’motion sufficiently identified theallegedly false portions of the search warrantaffidavit as well as the evidence heand Willie would testify to; and thesearch warrant affidavit would no longershow probable cause if the allegedly falseportions were excised. Cates thereforemade a substantial preliminary showingof deliberate falsity, and the trial courtwas required to go behind the “four corners”of the search warrant affidavit andallow a full evidentiary hearing. Cates v.State, No. 1206-02, delivered Nov. 12,2003.Yes. A trial court’s subsequent14handwritten permission to appealcontrols over a defendant’s waiver of theright to appeal, allowing the defendantto appeal despite the boilerplate waiver.Willis v. State, No. 1704-01, deliveredNov. 19, 2003.No. Manslaughter is a lesser15included offense of murder, butthere was no evidence in this that wouldpermit a jury to rationally find that, atthe time of the firing of the gun, anunaware, “blacked out” Schroeder wasaware of but consciously disregarded asubstantial and unjustifiable risk that hiswife would die as a result of his conduct.Evidence of a defendant’s inability toremember causing the victim’s deathdoes not entitle the defendant to acharge on the lesser included offense ofmanslaughter. Schroeder v. State, No.561-03, delivered Dec. 3, 2003.Yes. The instruction “intent or16knowledge may be inferred byacts done or words spoken” is unnecessary;it fails to clarify the law for thejury; and it is a judicial review device,Continued on page 34PAGE 33


THE TEXAS PROSECUTORContinued from page 33not an explicit legal tool for the jury. Asa result, it marginally falls on the wrongside of the “improper judicial comment”scale, and the trial court erred ingiving the instruction to the jury.Brown v. State, No. 0059-03, deliveredDec. 3, 2003.Court of Appeals. The courts of17appeals have mandamus jurisdictionin criminal law matters concurrentwith the jurisdiction of the Court ofCriminal Appeals. Because the courts ofappeals are generally the first resourcefor appeal from the district and countycourts, so too should a petition for awrit of mandamus against a district orcounty court judge be presented first tothe court of appeals unless there is acompelling reason not to do so. Padillav. Lana Rolf McDaniel, Judge, 203rdJudicial District Court, No. 20,423-05,delivered Dec. 3, 2003.No. The Court does not reach18the question of the authority ofpolice officers to arrest outside theircities because the trial court here couldreasonably have concluded that DeputyPaquette’s participation in and awarenessof the circumstances ofArmendariz’s arrest made him just asmuch a participant in the arrest as if hehad seized Armendariz himself. Thestop was therefore legal under art.14.01(b) CCP, which provides that anofficer may arrest an offender without awarrant for any offense committed inhis presence or within his view.Armendariz v. State, No. 0070-02,delivered Dec. 10, 2003.?? ?? ?ASK THE LAW DOGBy Alison HollandTDCAA Research AttorneyAnswers to your questionsA compendium of questions that have come intoTDCAA’s offices and their answersQAre two people in a bar, one carryinga 3-inch dagger, and the othercarrying a switchblade, subject to thesame punishment under §46.02 of thePenal Code?ANo. Under §46.02, a person commitsa third degree felony offense ifhe carries an “illegal knife” onto licensedpremises. Pursuant to §46.01, an “illegalknife” includes a dagger; therefore, theindividual with the dagger commits athird-degree offense. In contrast, theperson carrying the switchblade does notcommit such an offense because aswitchblade is not defined as an “illegalknife” under §46.01. The person carryingthe switchblade would be subject toa Class A misdemeanor charge under§46.05.QIs a police officer’s civil service personnelfile subject to disclosure?ANo, the file is confidential under§143.089(g) of the LocalGovernment Code. Subsection (g) prohibitsthe disclosure of (1) informationthat is maintained in the police officer’s… civil service personnel file and (2) anyother information that is reasonablyrelated to a police officer’s … employmentrelationship. In arguing confidentiality,the governmental body mustshow that the information in a departmentpersonnel file is reasonably relatedto the individual’s employment relationshipwith the department if the informationdoes not disclose this fact on itsface. Information in the department filenot reasonably related to the individual’semployment relationship remains subjectto disclosure under the OpenRecords Act. See Tex. Atty Gen. ORD-5(1990).QMay a witness legitimately invokehis Fifth Amendment privilege onthe basis that his testimony might resultin perjury charges?AYes. A witness need not show thathis testimony would incriminatehim with regard to an offense alreadyPAGE 34


JANUARY/FEBRUARY 2004committed. The Third Court of Appealshas held that a witness’ reasonable beliefthat his testimony might expose him toprosecution for perjury is a legitimatebasis for invoking the privilege. SeeGerman v. State, No. 03-03-00107, No.03-03-00108, 2003 Tex. App. LEXIS7908 (Tex. App.—Austin, Sept. 11,2003) (citing Chandler v. State, 744S.W.2d 341, 343 (Tex. App.—Austin1988, no pet.).QMay a commissioners court enterinto a contract with a private partyfor the collection of bond forfeiturejudgments?ANo. The Attorney General advisedin Letter Opinion 97-089 (1997)that collection of bond forfeiture judgmentsis within the exclusive purview ofa district attorney’s office under article22.02 of the Code of CriminalProcedure because it is the State which“shall … recover of the defendant theamount of money in which he is bound,and of his sureties, if any, the amount ofmoney in which they are respectivelybound.” Therefore, the authority of theState to collect on bond forfeiture judgmentscannot be delegated away by thecommissioners court.QMay a defendant receive deferredadjudication from a judge if heenters a plea of “not guilty” in a trialbefore the court?ANo. A trial court is not authorizedto grant deferred adjudicationbased on a defendant’s plea of not guilty.See Tex. Code Crim. Pro. Ann. art.42.12, §5(a). However, the judge maypermit a defendant to withdraw a pleaof not guilty in a nonjury trial, evenafter conviction, and change the plea toguilty or no contest to make the defendanteligible for deferred adjudication.See Reeves v. State, 68 S.W.3d (Tex.App.—Eastland 2002, pet. ref’d.); seealso State v. Sosa, 830 S.W.2d 204 (Tex.App.—San Antonio 1992, pet. ref’d.).QUnder the statute governing shockprobation, a court retains jurisdictionover the individual for 180 daysfrom “the date the execution of the sentenceactually begins.” How is the dateof the sentence’s execution calculated?AWhile there is no published caselawon the issue, George Dix andRobert Dawson write in Texas Practicethat the defendant’s sentence probablybegins to run on the date it is pronounced,not the date on which thedefendant is received by TDCJ. See 43AGeorge E. Dix & Robert O. Dawson,Criminal Practice and Procedure §39.66(2003). The authors cite as “persuasiveevidence” the fact that the felony shockcommunity supervision statute wasamended in 1989 to provide explicitlythat one receiving a felony prison sentenceand incarcerated in a county jailawaiting space in the prison is eligible toreceive shock community supervisionfrom the county jail. Id.QMay a trial court refuse to allow apro se defendant charged withchild sexual assault to cross-examine hisvictim?AIn Kentucky v. Stincer, 482 U.S.730, 753 (1987), the U.S. SupremeCourt indicated that there would be“little doubt” that if such a defendantinvokes his Sixth Amendment right ofself-representation and appears pro se,he is entitled to cross examine the childwitnesses whom he victimized.However, there are some ways tominimize the trauma to the child. InFields v. Murray, 49 F.3d 1024 (1995),the Fourth Circuit held that the trialcourt did not err in ordering a pro sedefendant to write out the questionsthat he wished to ask the witnesses hewas accused of abusing and to have alawyer read them. The court determinedthat the State’s interest in protectingchild sexual abuse victims from theemotional trauma of being cross-examinedby their alleged abuser was sufficientlyimportant to outweigh thedefendant’s right to personally crossexaminethe witnesses against him. Id. at1036-37. See also State v. Estabrook, 842P.2d 1001 (Wash. Ct. App. 1993.)PAGE 35


THE TEXAS PROSECUTORVICTIM ASSISTANCEBy Sarah WolfTDCAA communications directorVINE updateThe latest happenings on Texas’ victim information andnotification serviceThe July/August 2003 issue ofThe Texas Prosecutor includedan article on Texas VINE, theVictim Information and NotificationEveryday service that keeps crime victimsinformed of their perpetrators’ jailand court status. So far, 35 counties areup and running with the VINE system,and 96 are under contract to begin serviceonce the paperwork is complete.That leaves 123 counties that have yet toinitiate the VINE service, which is freeto all crime victims and operates at nocost to the county.Appriss Inc., the company that providesthe VINE service, hopes to have200 counties under contract by January1. Here’s how you can help meet thatgoal and serve your community’s crimevictims in the process.BackgroundVINE was founded by the parents ofMary Frances Byron, who was killed bya former boyfriend while he was out onbail. Mary was never notified of hisrelease, and her parents vowed to preventsuch future tragedies.The notification service is nowavailable in 1,400 communities in 36states, including Texas. The serviceoffers a single, statewide toll-free phonenumber (888/TX4-VINE) that victimscan call to check on their perpetrators. Achange in the perpetrator’s status, suchas his release from jail, prompts the systemto call any registered victims toinform them of the change.Because Texas counties vary widelyin their computerization of files andrecords, all counties must be brought upto a minimum level of automation, bothat the jail and at the court. In countieswhere data is already automated, TexasVINE simply links the county computersystems with an interface computer;in counties without data automation,system workstations are installed soinformation is directly entered by countystaff and sent to the main call center,usually via modem.Earlier this year, all county sheriff’soffices were sent information packets onVINE. If your county has yet to join thesystem, contact the local sheriff.Remember that there is no cost to thecounty, the district or county attorney’soffice, or crime victims for the VINEservice; it is funded through theAttorney General’s Office from thecrime victims’ compensation fund.What’s nextBy the time you read this article, twoweb sites to complement VINE’s phoneservice will have launched.VINELink.com is a public site, theInternet alternative to VINE’s toll-freenumber. Logging onto VINELinkallows crime victims to keep tabs onwhatever defendants they’ve signed upto watch. This service is free to registeredusers.The other site, VINEWatch.com,is for victim-assistance coordinatorsonly. (A limited number of registeredusers are allowed, so this site is notopen to the public.) VINE customersuse the secure VINEWatch web site toregister victims, obtain usage and otherstatus reports, and to print notificationletters locally that are then mailed tothe victim. To register withVINEWatch, contact Dr. DawnWiatrek with the Office of the AttorneyGeneral at 512/936-6423.In addition to these web sites,Texas VINE supports your staff andvictim service personnel with trainingand tactics to raise awareness of TexasVINE in your community. Thisincludes hands-on training, promotionalmaterials, media resources (suchas public service announcements andmedia releases), and long-range planning(including monitoring VINEusage patterns and strategies to maximizeusage).For more information, call ChrisJones at Appriss at 502/815-3856.PAGE 36


JANUARY/FEBRUARY 2004Once more, with feelingThe tumultuous marriage of mandatory probation andthe state jail felonyHave you ever done somethingthat felt so good you wantedto do it again right away? Well,that must be how the Texas Legislaturefeels about mandatory probation andthe state jail felony, because, likeRichard Burton and Elizabeth Taylor,they’re back as of September 1, 2003.Perhaps you’d like to know more aboutthe marriage, separation, divorce, andremarriage of this punishment pair.A decade ago, our criminal justicesystem was broken. The TexasPunishment Standards Commission wastold to come up with recommendationsfor fixing the system. The 73rdLegislature made history by rejectingthose recommendations and, instead,embracing the recommendations of aSenate Criminal Justice working groupthat included the strange bedfellows ofprosecutors, defense attorneys, judges,and other law enforcement officials.SENTENCING TIPSBy John BradleyDistrict Attorney in GeorgetownHappy birthdayThe state jail felony was born September1, 1994. 1 This new punishment provideda narrow range of confinement (180days to 2 years), a new place of confinement(a state jail), and truth in sentencing(no parole or good conduct credit).Notice that it wasn’t called a fourthdegreefelony, consistent with the 1st,2nd and 3rd degree felony labels listedin the original Penal Code. That wasintentional. The people in charge ofnaming new punishment ranges felt thatfourth-degree felony sounded weak andvery un-Texan. State jail felony (SJF), onthe other hand, was a very manly, solidsoundingpunishment that would presumablydeflect any suggestion thatTexas was soft on crime.SJF was conceived during a timewhen Texas needed a solution to prisonovercrowding, excessive parole releases,and a frightening crime rate. The ideawas to make room for longer confinementof dangerous criminals in toughprisons by isolating low-level propertyand drug offenders in less expensive,more therapeutic state jails.Surprise!Given this context, the original SJF legislationhad a very controversial qualification:Probation was mandatory,regardless of the crime or criminal history.2 No one served a direct SJF sentenceuntil the probation was revoked.(If the defendant was placed ondeferred adjudication, a direct sentencecouldn’t occur until after an adjudicationand subsequent violation of theprobated sentence.) Politicians told usthat this happy marriage of mandatoryprobation and state jails served twopurposes: (1) to give state officials timeto build actual state jails and (2) toencourage the development of localrehabilitation programs.Like drunken lovers awaking themorning after, that justification did notlook so good in the bright light of day.Although over 20,000 state jail bedswere built in surprisingly record time,the expansion of community correctionprograms never really got long-termfunding. And, the arrival of a new governor,George W. Bush, influenced the74th Legislature to retract the notion ofprobation for everyone. BeginningJanuary 1, 1996, SJF probation wasmandatory only for those defendantswho did not have a prior felony conviction.3 Less than two years later, thedivorce became final when mandatoryprobation, even for those with no priorContinued on page 38PAGE 37


THE TEXAS PROSECUTORContinued from page 37felony conviction, was completelyrepealed by the 75th Legislature. 4Beginning September 1, 1997, SJF probationwas free and single again, availableunder the same discretionary limitationsas first, second, and third degreefelony probation. And there it remainedhappy for six years.Over this last year, however, Texaslegislators faced a multibillion-dollarbudget shortfall. They began looking indark places to reduce costs, and thecriminal justice system again beganlooking like a pretty girl in a bar at closingtime.new marriage proposal also claimed tosave millions of dollars. Again, underwhelmingresponse.Verson 3.0: On the House floor, yet athird version of H.B. 2668 was presented.This version reached back to the originsof the SJF and resurrected, at leastin part, the notion of mandatory probation.This time, the House was careful tolimit the mandatory probation provisionto drug offenses (and even narrowed itsapplication to certain drugs). The Senateagreed with the House, and H.B. 2668was passed and signed into law. 5As of September 1, 2003, certainSJF drug offenders receive mandatoryprobation following conviction. 6Following conviction for the offenses ofpossession of a controlled substance,possession of LSD (five abuse units orless), possession of marihuana (onepound or less), or fraud (by prescriptionfor schedule II or III drugs), a judgemust probate the SJF sentence unless thedefendant has a prior felony conviction.(As before, if the defendant is placed ondeferred adjudication, a direct sentencemay not be imposed until after an adjudicationand subsequent violation of theprobated sentence.) For all other SJFcases, probation continues to be discretionarywith the judge.Version 1.0: House Bill 2668, filed byRep. Ray Allen (R–Grand Prairie,Chairman of the House CorrectionsCommittee) in the 78th Legislature, wasone measure that sought to save moneyby changing the punishment for certaindrug crimes. In the bill’s original filedversion, SJF drug crimes would havebeen changed to Class A misdemeanors,albeit with an enigmatic “mandatoryintensive narcotics supervision.” A fiscalnote from the Legislative Budget Boardclaimed that the change would havesaved the state more than $38 millionover two years. This marriage proposalmet with underwhelming response fromlaw enforcement.Verson 2.0: During House committeehearings, a substitute for H.B. 2668offered an extremely complex “model ofprogressive sanctions” for SJF drugoffenders. Frankly, it would take toomuch space to try and explain it. (I havea headache just from reading it.) ThisEffective Event/Date Types of SJF Case ConsequenceOffense 9/1/94–12/31/95Offense 1/1/95–8/31/97Offense 1/1/95–8/31/97Offense 9/1/97–8/31/03Sentencing 9/1/03–presentSentencing 9/1/03–presentOffense 9/1/03–presentAll casesAll cases (if no priorfelony conviction)All cases (if priorfelony conviction)All casesCertain drug offenses(see list, above)Certain drug offenses(if prior felonyconviction)Cases other thancertain drug offensesMandatoryprobationMandatoryprobationDiscretionaryprobationDiscretionaryprobationMandatoryprobationDiscretionaryprobationDiscretionaryprobationPAGE 38


JANUARY/FEBRUARY 2004In addition to probating the SJFdrug sentence, H.B. 2668 requires thatevery judge impose a condition of treatmentupon the defendant unless thejudge makes a specific finding that treatmentis not necessary. 7 Previously,imposing treatment as a condition wasdiscretionary.The 78th Legislature did recognizethat the original marriage of SJF automaticprobation suffered from a credibilityproblem. No long-term financialsupport for local treatment programsaccompanied the creation of state jails.Anticipating that same criticism withthe rebirth of automatic SJF probation,H.B. 2668 ordered the Drug DemandReduction Advisory Committee to notifyevery judge and prosecutor in thestate of the changes in law H.B. 2668created, along with the availability offunds for carrying out treatment as acondition of the automatic probation. 8Notably, this provision does not createany new funds; it just points you whereto go get them if they exist.The schizophrenic acceptance andrejection of mandatory SJF probationmakes for a strange history lesson.Perhaps it teaches us nothing more thanthe Legislature’s willingness to use thePenal Code as a means of balancing abudget or relieving prison overcrowdingin hard times. But we should pay closeattention to that history now that theHouse Committees on Appropriationsand Corrections have been ordered tojointly study whether to create a “progressive-sanctionsmodel” for the adultcriminal justice system.Déjà vu?For those of you who aren’t familiar withlegislative-speak, the “progressive-sanctionsmodel” could mean a system ofmandatory sentencing guidelines—thesame sort of guidelines federal judgeshate. And perhaps the same sort ofguidelines rejected by lawmakers whenproposed by the Texas PunishmentStandards Commission a decade ago.One must wonder how long the honeymoonwill last this time.Endnotes1 Tex. Pen. Code §12.35(a)-(b); Acts 1993, 73rd Leg.,ch. 900, §§1.18 and 1.19(a).2 Acts 1993, 73rd Leg., ch. 900, §1.01 (adding Tex.Code Crim. Pro. art. 42.12, §15).The jury was given norole in deciding whether to probate a SJF sentence.Subsequent amendments made it clear that only ajudge, not a jury, could decide whether to probate a SJFsentence. Anderer v. State, 47 SW3d 60 (Tex. App.Houston 2001). For more details on the laws relatedto the state jail felony, see Bradley, J., The Perfect Plea(TDCAA 2002 Edition), available at www.tdcaa.com orAnderson, K. & Bradley, J., Texas Sentencing (Lexis 4thEdition), available at www.lexis.com.3 Acts 1995, 74th Leg., ch. 318, §§60 & 84-85.4 Acts 1997, 75th Leg., ch. 488, §1, 6–7.5 Acts 2003, 78th Leg., ch. 1122, §4.6 Note that this new law applies to any SJF sentencingthat occurs on or after September 1, 2003. Previously,the effective dates focused on the date an offense wascommitted.7 Tex. Code Crim. Pro. art. 42.12, §15(c)(2).8 Acts 2003, 78th Leg., ch. 1122, §3.Continued from page 5DeFriend namedMADD’s Prosecutorof the Year (cont’d)ago when the cop was shot on duty and hadto take disability retirement. “I often wonderedwhat happened to that police officer,”DeFriend said, “and not long ago he camethrough my office again because of whathappened to his son.” DeFriend tried thecase against the drunk driver and won aguilty verdict with a 15-year prison sentence.“Thatwas pretty good,” he admitted.“You know how it is on DWIs and intoxicationcases: Sometimes juries don’t seem totake them seriously until someone’s killed.“It just goes to show how your life canbe affected by these offenders, just like cancer.It does not matter who you are or whatyou do, you are not immune. But unlike cancer,which can be somewhat avoided bylifestyle and diet, a drunk driver can get youwhen you have done everything right.”Upcoming plans in DeFriend’s areainclude the Shattered Dreams program, inwhich he and MADD will collaborate toeducate local students on the dangers ofdrunk driving.Courts and Local Gov’tTechnology ConferenceThere’s still time to sign up for the TexasAssociation of Counties’ Courts andLocal Government TechnologyConference in Austin, which runs fromJanuary 28–29, 2004. Local governmentpolicy makers and IT professionalswill exchange lessons in buying, supporting,and managing IT systems. Signup on TAC’s web site, www.county.org.PAGE 39


Continued from page 10Texas District & County Attorneys Association1210 Nueces St.Austin, TX 78701RETURN SERVICE REQUESTEDPRSRT STDUS POSTAGEPAIDPERMIT NO. 843AUSTIN, TEXAS

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