Texas District & County Attorneys Association

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