Robert Richard Thornton - Voice For The Defense Online

-the Texas (Robert Richard ThorntonEBRUARY 1987

JOURNAL OF THE TEXAS CRIMINALDEFENSE LAWYERS ASSOCIATIONVOICEfor rite Defense USSN 0361-2232) ispublished monthly by the Texas CriminalDefense Lawyen Association, 600 W. 13th,Austin, Texas78701, (512) 478-2514. Annualsubscription rate for members of thc associationis $24, which is included in dues. Secondclass pastage paid at Austin, Texas. POST-MASTER: Send address changes to VOICEforrheDefeiue, 6M) W. 13th. Austin, Texas 78701.All articles and othcr editorial contributionsshould be addressed to theeditor, Keny P. Atz-Gerald, 1509Main St., Suite7W, Dallas, Texas75201. Advertising inquiries and contracts sen1to Allen Carnally, Artfom, I=., 6201 Guadalupe,Austin, Texas 78752 (512) 451-3588.OFFICERSPresidentKnox JonesMcAllenPresident-ElectCharles D. BullsSan AntonioFirst Vice PresidentEdward A. Mallet1HoustonSeeond Vice PresidentJ. A. "Jim" BoboOdessaSecretary-TreasurerTim EvansFort WorthAssistant Secretary-TreasurrrRichard A. AndersonDallasEdilor, VOICE for the DefenseKerry P. FitzGeraldDallasEdilar, Significant Dceisions ReportCatherine Greene BurnettHoustonExecutive DirectorJohn C. BostonOmre ManagerNanee Nelle"I987 TEXAS CRIMINAL DEFENSELAWYERS ASSOCIATIONFEBRUARY 1987 VOL. 16, NO. 8FEATURE ARTICLES5 The Effective and Judicious Use ofOral Argument in the Court of CriminalAppealsby Judge Charles F. Catnpbell, Jr.and John M. Bradley9 Federal Sentencing in the 1980s andBeyond-Part Iby Alan Ellis18 Aliens as Criminal Defendants:Strategies to Avoid Adverse ImmigrationConsequencesby Alan Vonmcka24 Search Warrants and Arrest Warrantsby Jade Meeke,; assisted by SusartGogganCOLUMNS3 President's Reportby Knox JonesSDR1-12 Significant DecisionsReport34 DWI Practice Gemsby J. Gary Trichter37 Evidence: Clarity andVitalityb)! Geofley A.FitzGerdd40 From the Inside Outby WI~. T. HabernNEWS17 Index to Advertisers47 New Motions43 The Investigatorb)~ Jack Murray45 Ethicsby Pro$ Wnlter Steele, Jr.50 Jury Selection-The Voice Listensby Robert B. Himchhorn54 A View from the Benchby Judge Lnny Gist56 The Last Wordby Jack V. Strickland59 In and Around Texasby John Boston53 Letters59 Lawyer's Assistance CommitteePAST PRESIDENTSClifford W. ~rohn. ~ubbock (1982-83)Charles M. McDonald, Wac0 (1981-82) Phil Burteson, Dallas (197314)Robert D. Jonw. Austin (1980-81) C. Anthony Frilow, Jr., Hourton (1972-73)Vincent Walker Perini. Dallas (1919-80)Gmrge F. Luquene, Houston (1978-79)Frank Maloney, Auxin (1971-72)DIRECmRsDavid R. BiresHoustonWilliam A. Bratton 111DallasCharles L. CapenonDallasJoseph A. Connora 111McAllcnDick M. DcGuerinHourtonBuddy hl. DickenShermanBob ErtradaWichita FallsCarolyn Clause GarciaHoustonGerald H. GoldnteinSan AntonioBill HabemSugar landJeremiah HandySan AnlonioMerrilec L. HarmonWac0Joseph C. 'Lum" Ha\\lhomBeaunwnlHarry R. HeardIanevicwDallasJeffrey HinkfeyMidlandPrank JacksonDallasJeff KearneyFon worthJames H. KreimeycrBeltonJohn LinebargerPort WorthEdear - A. Maw"DallasArch C. hlcColl 111DallasE. G. "Gerry" MorrisAuxinJack 1. RawitscherHoultanGeorge ScharmenSan Antoniohlark StcvcnrSan AnlonioRichard ThorntonGalveslonJ. Douglas Tinkercorps Chris6Stanley I. WeinbergDallasSheldon WeisfeldBrownrvilleDain P. WhitwonhAustinBill WisrhkaemperLubbockRoberl 1. YlaguirrehlcAllenASSOCIATEDIRErnRSDavid L. BotsfordAustinRonald GuyerSan AntonioMark C. HallLubbockChuck LaneharlLubbockhl. Mark LesherTuarkrnaLynn Wadc MatoneWac0Glenn A. PerryIangviewGeorge RolandhlcKinncyKent Alan SchafferHouslonDavid A. SheppardAustinWilliam B. SmithMidlandRandy TaylorDallas

PRESIDENT'S REPORTIKnox JonesIt's won derh 11 to be living in an age of"less-intrusive government.'~ust knowingthat Big Brother is not looking over yourshoulder and that the unfettered exerciseof free enterprise remains unhampered iscomforting. The problem is, however, thatgovernment intrusion can exist outside themarket place.It seems that lately, any diminution ofregulations in our marketplace have beenoutweighed by intrusions into the most privateaspects of our everyday lives. Thesepot shots at the Constitution historically beginwith sn~all caliber assaults on the politicallypowerless, e.g., the wiretappingprovisions of the 1969 Omnibus CrimeControl Act, directed against the "criminalelement." But by the mid-1980's. wesee the shotgun approach utilized to thepoint that many defense attorneys are concernedabout the sanctity of not only theirtelephone, but their offices as well.We live in a star wars world. Thegovernment now has the ability and thelicense to be all-pervasive in its quest forinformation about where we go, what wesay and what we do. The quality of life inour supposedly free society will bediminished unless the courts recognize anddefine the limits of permissible governmentintrusron.Until recently, abuse of power by thegovernment has been relatively unchecked.Denial of bail, loss t ~f presumption of innocence,coutenance of police subtrafizgeand "good faith" violations of the FourthAmendment lead the way towards increased"law and order" and decreased fundamentalliberty. Our courts are finallybeginning to rediscover that allowing thegovernment to usurp fundamental libertyevenwhen citizens accused of crime arethe initial targets-invites the governmentto seize that initiative. The result can leadto the kind of government intrusions whichnow confront the federal bench.Imagine yourself sitting as a UnitedStates District Judge. Theattorney for theUnited States govenunent tells you that anyfederal employee who seeks a promotioowaives his constitutional right to object toa drug test and must submit to a samplingof his or her urine. Notwithstanding theprotests of government counsel and the imminenceof an appeal, your ruling is asfollows:(1) The mandatory collection of urinesamples constitutes a search even more intrusivethan a search of a home.(2) Urinanalysis testing, coupled with apre-test form (to be filled out by the persontested as per government mandate)amounts to involuntary self-incrimination.(3) The presence of an observer whilea "subject" performs excretory functions isa "gross invasion of privacy"-"a degradingprocedure that so detracts from humandignity and self-respect that it shocks theconscience and offends fhis court's senseof justice."These were the words of a federal judgesitting in the Eastern District of Louisiana.The defendant was the United States CustomService. The complaintant was theNational Treasury Employees Union. NationalDeaswy Enployees Union V. VonRabb, U.S.D.C. E. La. No. 86-3522,11/14/86; 40 CRL 2182.Now who the hell made it necessary fora Federal District Judge to rule that wehave a reasonable expectation of privacyin our urine (and cite authority)? Was heillogical in his dicta that if carried to itslogical extreme, those who wished to rideupon federal highways must consent tohaving their urine tested?I asked my wife to help me think of asuitable ending to this diatribe. She mumbledthat either we ought to be thankful forcourageous and perceptive federal judges-or a constitution that gives us our systemof checks and balances-or both. NOWand then she mumbles the right thing. Sonow and then I take a few notes. WFebruary 1987 1 VOICE for the Defense 3

MemorialRobert Richard Thorntonby John BostonThe Texas Criminal Defense LawyersAssociation has lost one of its originals.Charter member Robert Richard Thornton,68, of Galveston died December 26, 1986after a brief illness. He had been a lawyersince 1947, having begun his legal educationin 1939. From 1940 through 1946 hewas on active duty with the United StatesArmy Air Corps.A native of Houston, Richard was bornJuly 12, 1918, attended Galveston publicschools and was an honor graduate of BallHigh School in 1935. He attended TulaneUniversity in New Orleans, the Universityof Texas at Austin (BA 1939), the Universityof Texas School of Law receiving anLLB degree in 1948. Like many of hisgeneration his education was interruptedby World War 11.Colonel Richard Thornton United StatesAir Force Reserve (Retired) had a distinguishedmilitary career, both active dutyand Air Force Reserve. He served in boththe Pacific and European theaters duringWorld War TI. He survived the ditching ofhis B-17 near New Guinea in the South Pacificin November 1942. He and his crewspent four days in life rafts in sbarkinfestedseas before they were rescued. InMarch 1943 he was transferred to the Europeantheater where the then CaptainThornton flew thirteen bombing missionsover Europe. On this thirteenth mission hewas shot down over France, parachuted tosafety and for some period of time evadedcapture with the aid of the Free French.He was captured near the French-Spanishborder by the Ciestapo in 1944. He wasliberated by the Russians in May 1945 andleft active duty as a Major, continuing inthe United States Air Force Reserve andretiring as a Reserve Colonel in 1965. Hisdecorations include the Silver Star, DistinguishedFlying Cross with oak leaf cluster,Air Medal with three oak leaf clusters andvarious campaign medals from both thePacific and European theaters. He was amember of the National Ex-Prisoner ofWar Association, the Veterans of ForeignWars and the American Legion.Richard Thornton was admitted to practicein the State of Texas in 1947; UnitedStates Supreme Court in 1953. He was admittedto practice before various othercourt and commissions throughout hiscareer including three of the Federal DistrictCourts of Texas, Immigration Appeals,Interstate Commerce Commission,United States Court of Appeals, Fifth Circuitand the US. Court of Military Appeals.In addition to being a chartermember of TCDLA, he was a member ofthe American Trial Lawyers Association,Texas Trial Lawyers Association, GalvestonCounty Bar Association, havingserved as a member of the hoard or as anofficer of the latter two orgenizations. Hewas amemher of theNational Associationof Criminal Defense Lawyers.Thornton was very active in continuinglegal education programs including thefaculty of the Texas Trial Advocacy Institute,Sam Houston University; Lecturer,Criminal Law and Procedure Section StateBar of Texas; Adjunct Professor, CriminalLaw and Procedure, Trial Tactics,University of Houston Bates College ofLaw; and Southwest College of Law. Inthe past he has been a lecturer for theCriminal Defense Lawyers Project and acontributor of legal articles to the Voicefir, the Defense.Anoutline of the facts of a forty-year legalcareer in no way does justice to thecontributions that Richard Thornton madeto the legal profession in general and theTexas Criminal Defense Lawyers Associationin particular. Richard Thornton wasalways available to advise and assist criminaldefense lawyers with tough cases andproblems of any nature. The localnewspapers in Galveston County havereferred to him as "prominent." He wasthat and so much more. Richard Thornton'scontributions to his profession, his stateand his country were many. We willremember him as a first class gentleman,an honorablelawyer and a friend. We willmiss him.WPRIVATE* * CRIME LABORATORY *Prnvlrli~~g Qualily Fnrcnsic Analysisa ~ Expert ~ d l'cslilnony in thc Following Arras :Drug AnalysisBlood Alcohol AnalysisUrine Drug AnalysisAlcohol ToxicologyAnonymous Drug TestingDWI ConsultationClandestine Lab ConsultationAlcohol Absorption/Arson Debris AnalysisElimination CurvePhysical Trace Evidence,Preparation forMurder, Rape, etc.DWI ClientsPrivate Investigationsiz We specialize in preparing defense attorneysfor cross-examination of opposing scient@c experts QInitial consultation is free of chargeMICRO FORENSICS & INVESTIGATIONS1600 hkst Hichwnv 6, Suilc 350Alvin, Texas 77511Houston Area: (7131 331-2655 Austin Area: (512) 445-0190A VOICE for the Defense /February 1987

The Effective and Judicious Use ofOral Argument in the Court of Criminal Appealsby Judge Charles F. Campbell, Jr. and John M. BradleyOral argument is the only opportunityfor direct personal contact between appellatejudges and the p+ in a lawsuit.'In that short encaunter, an advocate has theunique opportunity to supplement the writtenword with the spoken word, therebyadding credibility.and emphasis to argumentsthat might otherwise be unremarkable.Knowing that the spoken word c-anhave a significant effect upon the decisionmakingprow, appellate judges have frequentlypublished their thoughts on the artof oral advo~acy.~ The purpose of this ar-ticle is to add to those comments by focusingupon improving oral argument in theTexas Court of Criminal Appeals.When Can Counsel RequestOral Argument?Counsel can request oral argument inanv "causes" acce~ted bv the Court of~rknal Appeals for suhhi~ion.~ Thesecauses include direct appeals, cases grantingdiscretionary review, extraordinarymatters and post-conviction writs of habeasco~pus.~ Prior to actual submission of acause, the Clerk of the Court must informcounsel of record that he bas 30 days withinwhich to notify the Court whether oralargument is desired.'C~unsel may not request oral argumentin motions requesting special consideration,e.g., to advance on the docket."Likewise, counsel may not request oral argumentin motions for rehearing or repliesto such motions.' However, if a motionfor rehearing is granted, the Court maypermit oral argument upon resubmissionof the causc8At present, the Court does not screen requestsfor oral argument. If requested, oralargument generally will he granted.Although the rules of appellate procedureindicate that oral argument may be deniedfor rehearings, the court has not indicatedany specific grounds for denying such argument.Nor has it shown any general ten-Charles F. Canlobell is a maduate ofSMU School of &v. He hashen AS&tant Disnict Aftomey in Harris Caunty;County Artonzq and District Altomey inHill County; Assistant Attorney General,Chief of Prosecutor's Assisfance Divisionunder Attorney General Mark While; electedJudae, Tam Court of - Criminal Aweals .-in 192.Mr. Bradley is Judge Campbell'sResearch Assistant. Previously he servedas Briefng Attorney for Judge Campbelland= intem to Harrts Corn District Atfonteykoffice. He graduak fmm theUniversity of St. i'h~homas in 1981 andfromthe llniwrsify of Houston LUW Center in1985.dency to deny argument upon rehearing.Tbese circumstances indicate that theCourt presently has a liberal policy ofgranting requests for oral argument.Some appellate courts have begunscreening requests for oral argument. Thedevelopment of such a policy stems froman increase in frivolous cases, a rise inoverall caseloads and a recognition thatmany cases are governed by dear precedent?Those same policy considerationscould eventually lead to restrictions uponoral argument in the Court of Criminal Appeal~.'~To preserve an independentchoice, attorneys should make selective,intelligent requests for oral argument andthen follow through on that request.When Should CounselRequest Oral Argument?Counsel should request oral argumentwhen he believes that it will significantlyenhance his written brief. The opportunityto vocalize the contents of a brief, if usedto engage in mere repetition, is not a soundenough reason for requesting and presentingoral argument. Counsel must analyzehis oarticular case in terms of the obiec- "tives of oral argument and determinewhether there will he any distinct advantagesto supplementing his brief with thespoken word.Each Wednesday, when oral argumentsare presented in the Court of Criminal Appeals,at least one party to a cause typicallyfails to appear." Counsel's absence impliesthat his request for oral argument mayhave been mechanistic rather thanmeaningful. This sort of haphazard approachto appellate advocacy might eventuallylead to curtailment of oral argument.A former state supreme court justice hasidentified ten functions of orat argument:(1) to persuade judges(2) to focus on one important matter only(3) to reiterate most major points in thebrief(4) to clarify facts(5) to counter opposition's arguments(6) to appeal to '$mice," 'kight," and"fairness"(7) to legitimate the legal process by appblic confrontation of issum(8) to urge judges to read (or reread)February 1987 1 VOICE for fhe Defense 5

iefs(9) to prepare judges for conferencedeliberations(10) to force judges to cummunicate witheach other.12Counsel should ideally request oral argumentonly when his case provides an opportunityto accomplish a majority of thesefunctions.Some written arguments are simply notenhanced by subsequent oral presentation.For exmple, a brief challenging the sufficiencyof the evidence for a given convictionis rarely enhanced by oral argumentand is often inappropriately converted intoa second jury argument." Counsel inevitablyrepeats his version of the lengthyfactual foundation containe'in his brief,making numerous distractive trips to therecord, and predictably concludes that therecord does or does not support the verdict.Opposing counsel generally respondsby pointing to still more facts in the recordsupporting the contrary point of view.Such an extensive facbal dispute is bestleft to the briefs, to be carefully consideredby the Court after submission of the case.On the other hand, oral argument isoften an ideal forum for addressing theconstitutionality of a statute or the applicationof a particular constitutional provision.14The resolution of constitutionalissues affects the public generally andshould, therefore, follow public debate. Infact, oral argument of constitutional issueshas become even more necessary becauseof the recently recognized distinctions betweenstateand federal constitutional protection~.'~A complete list of the types of argumentsbest suited to oralpresentation in the Courtof Criminal Appeals is not possible becauseof the many factors that affect eachcase. However, counsel should be able toapply the principles set forth above indeciding whether oral argument wouldbenefit the Court.In making a decision, counsel shouldalso be aware of some institutional proceduresthat inherently limit the impact oforal argument in the Court of Criminal Appeals.First, oral argument is presently notrecorded,16 although a majority of thejudges, along with their briefing attorneys,do take notes. Second, following oral argument,the Clerk of the Court divides thesubmitted cases into nine approximatelyequal "stacks."17 The nine "stacks" arethen distributed among the judges bylot.lS No conference discussion of a caseoccurs until an opinion has been draftedand circulated. Third, a significant amountof time may pass between oral argumentand conference discussion of a case. Thesecircumstances may diminish the impactthat an oral argument could have upon theCourt.These limitations, of course, could bepartially alleviated by recording oral argumentandlor holding tentative decisionalconferences hard on the heels of oral argument.In the United States SupremeCourt, for example, conferences are heldat the end of a week of oral argument, thuskeeping initial discussion of a case contemporaneouswith the oral argument.19 Onecommentator has even suggested that appellatecourts hold conferences or circulatetentative opinions prior to argument,thus increasing the likelihood that it willassist the court in its decision-makingprocess.20By concentratiw .. upon the Durposes oforaiargulntmt and npiiying objcc&e standardsforjudging the likcly effect of an argumentupon particular issues, counsel canmake an intelligent and productive decisionwhether to request oral argument. Presumingit is requested, counsel should then focusupon developing an effectivepresentation.How Should Counsel PrepareOral Argument?Counsel can ease much of the tensionrelated to his first argument before theCourt of Criminal Appeals by becomingfamiliar with the courtroom and the externaland internal court rules. In addition,counsel should watch several arguments:"observing the various styles ofargument and the reactions of the judges."Unless extended by the Court of CriminalAppeals in a special case, the totalmaximumtime for oral argument shall be 20minutes per side. Counsel for the appellantor petitioner is entitled to open andconclude the arg~ment."'~ "If oral argumentis permitted [after a motion for rehearingis granted], counsel will be limitedto 15 minutes per side. The movant is entitledto open and conclude the argume~~t."~'Any motions for extended argumentmust be timely filed with the Clerk of theCourt prior to the argument date andshould include specific reasons for allowingan extension of time." If counselwishes to reserve any time for rebuttal, heshould notify the timekeeper before argumentbegins.The Court, which consists of a "PresidingJudge" and eight "Judges,"= convenespromptly at 9:00 a.m. on Wednesdays withthe announcement of written opinions. AILparties arguing should then be present. ThePresiding Judge then calls for the first caseto be argued. Each judge has before hima written memorandum, prepared by thestaff attorneys and studied by the jndgesprior to argument, that summarizes thefacts and issues present in each case. Uponcompletion of a case, the next case is inmediatelyargued, unless the Court recessesfor coffee or lunch.Facing the bench, counsel for the appellantis seated at the table on the left. TheState's attorney is seated at the table on theright. A briefing attorney serves astimekeeper and is seated at a desk to theimmediate left of appellant's table, alongwith another briefing attorney who servesas bailiff.A clock and a diagram of the seating arrangementfor the judges are present on thespeaker's podium, which is located betweencounsels' tables. A yellow and a redlamp are also attached to the podium. Theyellow lamp is Lit when counsel has oneminute remaining in his argument. The redlamp is lit when counsel's time has expired.Once time has expired, counsel should immediatelyconclude his argument or risksummary interruption by the PresidingJudge.Counsel should not feel compelled to useall of his time. Some of the best argumentshave often been made prior to the expirationof time but were significantlydi~inished in effectiveness by an attemptto fill the remaining time.To prepare the substance of his argument,at a minimum, counsel should rereadthe relevant portions of the record. Toooften, counsel imprudently downplays hisrole as appellate counsel by explaining thathe did not try the case. Counsel should thenstudy the relevant law and then prepare anoutline of his argument. Finally, counselshould practice his argument, making surethat sufficient time is left for questionsfrom the Court.If counsel is unable to provide the Court6 VOICE for rlze Defense / February 1987

with an mthoritatim? qmseto a questionmnming the record, he will losemuch of his credibility. Likewise, and0Derwk.e eEeotive argument is dilutedwhen counsel is unfamiliar with recent appellatedeeisioas.JustiGe Spears of the Texas upr re meCourt has noted the critical impoetance of .an outline:The otgdmprovided by an outlineis mucia! to a successful oral argumentfor several rms, =st, adisorganized presentation will confusea listener even more qWythan a poorly oqanized written argumentwilt confuse a readex. Second,heeauss your time forargument Bs limited, an outline ensuresthat you covet your ma@rpoints. Third, fhe ffow of your argum%ntmry beintempted by questioning,and fhe outline will hdp youto ream to pour former argument orto dungetbeorder of your argumentto ad;lpt to questioning?aftracted the iptmsst and attention of Briefs fired in direct ap~eals of capitalthe court. The room cam atiw fiurder 60nvictbns often allege multipleB~eryonei~asmtalfJtthewpoints of error." Extraordinary matten:of his chair, In-seconds mnsei had and post-eonviaion applications fw writsriveted the attention of all par- of b a h wpm alw g$ngrany conbintisipants unto the question tbt ail multiple complaints. It is auggestwt thatmcerned knew was critioaLn tbunsel arme no more than three pointsoFe~tov. neleetk onlvzho8sODints of erl'hesameapproaoh would prove eMvei r that relike$ to i$ e&& by oralIn tke Coure of C r W Appea18. The argument.judware familiar with the background of Gtter idewing the issue[%) in his ass,the case snd are premretl to heat COUIW counsel shoulditnmediately pfOwd to detdl fithem exactly what the bsues we and vetop his legal reatonin& suppo&g Itwhat relief is sought.wirh economical refernets to the recordThe majolity of cam before the and cae auFhorities.Cmrt of CriminaI Apmls involve p4-tiom for discretionarx review, vhich fOcusupon decisions of the courts ofappe,als?8 The Cmrt generally onlygrants a single, narrow ~ u n d forre vie^?^ If the pEtitiea correctlydescrih a ~pecifrcground for rwiew andthe brief properly focnses upon the sanfeground, fhen counsel will dmdy have anartow issue. for oral presntatdon." Ifseveral grounds for review have been-Coapel will not bepermittedto readat length from the brief, records orauthorities. Counsel may mab anoral comwtmn to his brief, bnt multipieadditionat cit&ions should notbe made orally; they should beredueed to writing and filed with heclerk."Counsel will more @anlikely he interyupteti~ted.then wwml &odd arfiue anly ed by quastions. He shqnld answer themffwunw~ has cons~imtious~y prepadfor those g&nds hest suited for od wg6- imm&&~~, weaving his ansms inm thewal argwmerrt, then his delivery of that ar- ment Fromapl-actical viewpoint, it is sug- mhstanoe of his argument. TBis task isgument .should provide the Court with a thatco counsel arguenodrethan two oftenqnitediffhIt, butanadvacateshouldvaluable blneplint for deciding the case. grounds for review. welcome questitlns because thef reflect theHow ~ u l Cmwl d PsesentOral Argument?Gtvm the physical limitatio~r~ placedupm om1 argument, w d mustmake efficientuse of his time, Counsel must beginby presenting the Court with anilmmdhte and coneiso StateiWnt Of themlevant isme. Justice G6dbbid ofthe UnitedStates Couct of Aaoeals for the FifthCircuit made the folGwing suggestion:I refall an especiaUJr effectivepresentation by a young lawyer,formerly a law derk for another circuitjudm who walked to the pdiumof out court and said: m y nameis So and So, from Houston, Texas.The issue, fb this case is whetherChwibl~r~.>y. d&csrotfey is r8tmBctive.")He had hidall else a6ideaadgone for the jugular. In two senteamhe had identffkd hinmlf, preeiselytargeted the dkposttive iaewon which discumion would be canteredand the case ddacided, and had1 ADVOCACY COURSEFebruary 1987 1 VOICE forth D6fetts.d 7

Court's interest in an issue.= At the conclusionof his argument, counsel should notmake open-ended requests for questionsfrom the Court on issues that have not beenargued. Counsel, after all, presumably hasalready requested oral argument on thoseissues he supposed worthy of oral argument.Although few lawyers thought so at thetime, one of the most critical coursesoffered in law school was Remedies 101,or some version thereof. Equally as criticalin an appellate argument is the prayeror reauest for relief. Does counsel seek anacquittal, a reversal, a vacate and remandorder, an affirmance, etc.? Whom doescounsel want to reverse or aftinn-the trialcourt, the court of appeals, the Court ofCriminal Appeals on rehearing? In short,counsel should know what remedy he isseeking." He should make it crystal clearto the Court and not get lost in the fog ofambivalent or alternative remedies.The procers of presenting oral argumentrequires an imaginative, diligent effort onthe part of attorneys. However, by makingjudicious use of oral argument, attorneysshould be able to affect and. indeed.improve the jurisprudential process itself:Effective oral argument will insure that appellatejudges receive not only accurate anduseful research but also information thatis persuasive in its artful presentation.I. Of mme, n crit~:inal Jcfcndaa's pcrwnal contactwith ihecoun is grwrally through his legalrepresentative because he has no constihrtionalright topresent his own oral argument before anappellate coun. Webb v. Slate. 533 S.W.Zd780,784-85 (Tex.Cr.App. 1976); Tookev. Srate. 23Tex.App. 10, 3 S.W. 782 (1887). CJ Anicle44.03, V.A.C.C.P. (Supp, 1986). repeated byV.A.C.S., art. 1811f. $4 (Supp. 1986) ("Thedefendant nced not be personally present upunthe hearingofhiscausein.. .thecourtof CriminalAppeals, but if not injail, he may appear inperson.'?. However, the Court of Criminal Appealsoccasionally allows adefendant topresenthis own aral argument. See Lenlry v. State, 13S.W.2d 874,884 Cl'ex.Cr.App. 1928) (opiniononrehearing). In fact, inthelast term, thecourtheard aral argument fmm a defendant who dividedhis time with his atlorney.2. Justices from the United States Supreme Courthave regularly offered their own suggestions forpresenting an effective oral argument before theirwun. See, e.g., Rehnquist, Oral Adsocac). 27S. 'Ter L. Kcv. 280 (1986); Powell, 77rr Ixvdof.%prw!,r C,,unAd,nvocy. Speech at 1:ifth Clr.Jud. Cmf. fMav 27. 1974): Harlan. IVl~rrr PurlAdwacy Before the Supreme Cow: Suggesliowfor Effecliw Gme Prerenrorions, 37 A.B.A.J.sol ii951).Justices from the Texas Supreme Coun havealso published their thoughts on oral argumentin their court. See, e.g., Spears, Pmenthtg anEffcc~he Appeal, 2K1) Trial 95 (1985); Greenhill,Advocacy in the Terns Suprenre Court, 44Tex. B.I. 624 (1981).3. See Tex. R. App. Pro. 220, 49 Tex. B.I. 558(1986) (hereinafter "Rule"). The Court has notspecifically excluded any cause fmm being arguedorally.Presumably, then, counsel can successfullyrequest oral argument in any causeaccepted for submission. Cf: Rule 750 ('Thcmurt of appeals may, in its discretion, advancecivil cases for submission withcat oral argumentwhere oral acgumeent would not materially aidthe court in he determination of the issues oflaw and faet presented in the appeal.'?.4. Rule 222(a).5. Rule 220. The Clerk generally mails notice tothe parks after the appell~le briefs have beenfiled. As a oractical matter. the Clerk reaucststhat rounscl rcspund within IS &ys uf notice.Simply including a wquest for oral aryumrnt inthe briefmay not be sufficient to comply withtherules. Cf: Rule75(9 ("A pany to the appealdeslnng oral argument [in the cow of appeals]shall file a request therefor st the time he fileshis brief 1n the case.'?.6 A motion requesting special consideration is nota "cause" subject to oral argument See Rule-.-\-, 212fA7. Rule 230(b).8. Rule 230(e).9. See Wasby, llie F~utctionsa~~dfinpoTfot~ce ofAppellateOral Argumnl: Smae Ken's oflawjersm,dFederalJlrdaes. 65 Judicature 340,351 352(198a); ~odbord, ntmy pages 02 TW,~).Mitrrrres-Effec0'r.e Ad~~oeneyo~~ Appe~l. 30 Sw.L.J. 801, 801-02 (1976).10. In 1985, outof 352 subminod causes, 144 or40.9pereent were orally argued. By contrast, the FifthCircuit has "made 'extensive use of truncatedprocedures,'with haoral argument in a high percentageof cases." Wasby, suprn note 9. at 34911.41.11. If an attorney is unable to attend aral argument,then he should notify the Clcrk of the Court atleast a week in advance of the argument date.Otherwise, counsel wastes Ule timeand resourcesof the Caurt and risks committing contemptuousconduct.12. Weaver, quored if, Sheldon & Weaver, PoLmCIANS. JUOOES. AND THE PEOPLE: A STUDY ~iCmZ6Ns PARTICIPATION 86 (WestpuCl, COnn.;Greenwwd Press, 1980).13. In a recont survey of federal circuit mun judges,only nine per cent regarded argumem based onsufficiency of the evidence as essential in civilappeals. Wasby, supra note 9, at 349.14. In a survey of lawyen fmm the Semnd, Fifthand Sixth Circuit Courts of Appeals, the lawyers"considered oral argument essential in 'caseswhich involve matters of great public interest(despite the absence of subslantial legal issues)[andl eases involving the constitutionality of astate shlute or a state aclion.*"Zd.., quoting DNry,Gaadman & Stevenson, Anonrrav An1-WDES TOWARD LlbUl'ATIONOF ORAL ARGUMENIAND WRlITEN OmNloNl~ THNB U.S. COURTSOF APPEAL, at 22 rnhington, D.C.: Bureau ofSocial Science Research, 1974).IS. See, e.g., MeOunbdge v Srale. 712 S.W.2d499, 501M n.9 (Tex.Cr.App. 1986).16. Thc Texas Supreme Coun records all oral arguments.17. Rule 222(c).18. Id.19. See Harlan, suprn note 2, at 7. Justice Harlanalso noted: "I amgiving away no secrets, I amsure, when I say that in one of the courts of ap-- . .oeals where1 was assiened to sit lemwrarilv thevoting an the cases took place each day follou,-ing thecloseof thearguments." Id. Using an evenmore radrcal approach, an intermediate Arizo-na &late court has a pallcy of issuing a tentativiwinen opinion to the parlics, allowingthem to argue the correctness of that opiniw.Telephone interview wilh Joyce Goldsmith,Clerk of the Division I1 Court of Appeals, Arizona(Nov. 17, 1986).20. See, Wasby, srrprn note 9, at 347.21. A number ofadvocates mcrit such attention, Theauthors recommend observing the following attorneys,who regularly present effective oral arguments:Chris Manhall, Assistant DistrictAttorney in Travis County; Edwilrd Shaughnessy,Assistant District Attorney in BexarCounty; RonaldGoranson, Defense Attorney inDallas County; and Janet Morrow. Defense Attorneyin Harris County.22. Rulc 221.23. Rule 230(e).24. Rule 212.25. See Tex. Conrt. an. V, S4.Attorneys commonlymake themistake of referring to members of theCourt of Crinlinal Appeals a; "Chieflustice" or"Justices." Those titles are resewed for membersof the Supreme Court. See Tex. Const. an. V,$3.26. Spears, supra none 2, at 97.27. Godbold, wpm note 9, at 809.28. Rule ZW(a).29. Rulc 202(d)(4).30. See McCnmhinge, rrrpra; see also Dcgrate vStnre. 712 S.W.2d755 (Tex.Cr.App. 1986) (percuriam).31. Under the new rules, former "gmunds of error"are now referred toas 'paints of ermr."See Rules74(d) & 21(i(b); Bwdlw s. Srute. No. 69,271,slipop. s1n.l (Tex.Cr.App. October 15, 1986)(not yet rcpaned).32. Rule 221.33. Thereare masions whenquestions from men>bersof the Coun consume themaioritv of mun-. .wl's timc. pwenting \sl~;at ~wighl 113~ IKC~ 14brillisnl argLnwnt. Co~nsel rhuuld not ilrspairii this happns. It is s IAdy ~ign~l that tlw imterest of the Coun has been acutely piqued bythe issue praented.34. See Rules 80,202(k), & 211(c]; cl: Art. 44.24,V.A.C.C P. (Supp. 1986). &pealed byV.A.C S., art. 1811f. $4 (1986).8 VOICE for the Defe,tse / February 1987

Federal Sentencing in the 1980s and Beyond:Part I-A Practitioner's Guide to the Law of Sentencing Now in Effect andCurrent Practices of the United States Parole Commission and Federal Prison Systemby Alan EllisIntroductionIn response to a growing perception thatfederal sentences were grossly and unfairlydisparate, Congress passed as part of theComprehensive Crime Control Act of1984, a chapter entitled "The SentencingReform Act of 1984." While this legislationwill radically change federal sentencingas we now know it, despite its passagein 1984, the sentencing provisions, for themost part, will not take effect until November1, 1987.A major aspect of the Sentencing ReformAct of 1984 involves the creation ofthe United States Sentencing Conlmissionto be responsible for the promulgation ofsentencing guidelines to be submitted toCongress by April, 1987. Sentencingjudges will be bound by these guidelinesunless they find "that an aggravating ormitigating circumstance exists that was notadequately taken into consideration by theSentencing Colmnission." 28 U.S.C. 5994;18 U.S.C. §3553@). Parole will heabolished aud the amount of "good time"a prisoner can earn will he substantiallyreduced. In effect, the sentence imposedwill be the amount of time actually to beserved less approximately 15 percent.Since, however, the new sentencingprocess will not be completely in effect fora number of years, sentencing law andprocedure currently in effect as well aspractices and procedures of the UnitedStates Parole Commission and the FederalPrison System should be recognized bydefense attorneys as they approach the sentencingprocess.Part I of this acticle, therefore, dealswith such current law and practices. PartI1 to be published this spring, will discussthe new sentencing reforms to take effectin November, 1987.New LegislationWithin the last two and a half years, twonew laws have been enacted which drasticallyaffect the sentencing of federal criminaldefendants.On october 12, 1984, the ComprehensiveCrime Control Act of 1984 becameAlan Ellis of Plrilnrlelp11ia. Penrrs)~lvarriais narionally recognized for his successfdpost-co~rsiction represefrtntion ofcrimirral defendants. He writes, lectares,mrd practices atemively in the area ofplea bnrgairring, sentencing, Rale 35 Mo-tions, p~ison designation, parole, 2241 and2255 Motions and appeals.Mr. Ellis is n for~ner lawprofessor, andfederal law clerk to hvo United States DistrictCourt Judges. Presently, he serves asi71ir.d Vice-President of the National Associationof Criminal Defense Lnbvyers(NACDL) and is the Clrairmarr of its U.S.Serrterrcbrg Corn~nission Liaison Conunittee.Mr. Ellis was named as one of '82 Peopleto Watch in 1982 by Philadelphiamagazine and is listed in Who's Who inAmerican Law.law. This Act contained two chapterswhich deal primarily with sentencing: TheSentencing Reform Act of 1984 and theControlled Substances Penalties AmendmentAct of 1984.The drug penalty amendments increasedthe penalties for various controlled substancesoffenses and were made applicableto all offenses committed on or afterOctober 12, 1984. While a few of the provisionsof the Sentencing Reform Act tookeffect in 1984, most of the provisions donot take effect until November 1, 1987.As stated above, the major aspect of theSentencing Reform Act of 1984 involvedthe creation of a United States SentencingCommission to be responsible for thepromulgation of sentencing guidelines tobe submitted to Congress by April, 1987.Congress has six months thereafter to examineand consider the guidelines. Unlessrejected or modified by Congress, the proposedguidelines will take effect onNovember 1, 1987. A first preliminarydraft of the proposed guidelines has beenpromulgated by the US. Sentencing Commissionand can be found at 51 FederalRegister No. 190, pg. 15080 et seq. (October1, 1986). This preliminary draft willnot be discussed at this time except to saythat under the draft, sentences served bymost federal prisoners will be drasticallyincreased.The Controlled Substances PenaltiesAmendments Act of 1984, as above stated,increased the penalties for various controlledsubstances offenses and were madeapplicable to all offenses colnmitted on orafter October 12, 1984 and before October27, 1986.' The Controlled SubstancesPenalties Amendments Act of 1984 amendedthe penalties for 21 U.S.C. $841(a)(manufacture, distribution, possession withintent to distribute a controlled substance)and 21 USC §960@) (importation of a controlledsubstance) and increased the maximumprison sentence andlor fines fornumerous drug offenses.Three distinct categories of penaltieswere createdinnew21 U.S.C $841@)(1):(1) Enhanced penalties of up to twenty(20) years imprisonment and a fine of$250,000.00 for offenses involving certainlarge amounts of Schedule I or I1 narcoticdrugs, PCP and LSD;(2) Regular penalties of up to fifteen (15)years imprisonment and a fine of$125,000.00 for offenses involving allSchedule I or I1 controlled substances thatFebruary 1987 / VOICE for the Defense 9

tory minimum jail terms will be imposedfor drug trafficking offenses involving thefollowing quantities of the same controlledsubstances:(i) 100 grams or more of a mixture orsubstance containin a detectable amount ofheroin;(ii) 500 grams or more of a mixture orsubstance containing a detectable amountof -coca leaves, except coca leaves andextracts of coca leaves from which cocaine,ecgonine, and derivatives of ecgonineor their salts have been removed:(11) cocaine, its salts, optical and g oometric isomers, and salts of isomers:(111) ecgonine, its derivatives, theirsalts, isomers, and salts of isomers; or(IV) any compound, mixture, orpreparation which contains any quantity ofany of the substance referred to in subclauses(I) through (111);(iii) 5 grams or more of a mixture orsubstance described in clause (ii) whichcontains cocaine base;(iv) 10 grams or more of phencyclidine(PCP) or 100 grams or more of a mixtureor substance containing a detectableamount of phencyclidine (PCP);(v) 1 gram or more of a mixture or substancecontaining a detectable amount oflysergic acid diethylamide (LSD);(vi) 40 arams or more of a mixture orUnited States Code, or $2,000,000 if thedefendant is an individual and $5,000,000if the defendant is other than an individual.A court must also impose a term of supervisedrelease of at least four (4) yearson such "first-time drug offenders."Persons convicted of such offenses whohave prior, final state, federal or foreigndmg-related convictions must be sentencedto a mandatory minimum term of imprisonmentof ten (10) years with a maximumof life imprisonment. If death orserious bodily injury bas resulted from useof the substance in question, such "repeatdrug offenders" must be sentenced to lifeimprisonment. In addition to imposing aterm of imprisonment, a court may finesuch "repeat drug offenders" an amount notto exceed the greater of twice that authorizedunder Title 18, United States Code,or $4,000,000 if the defendant is an individualor $10,000,000 if the defendantis other than an individual. A court mustalso impose a term of supervised releaseof at least eight (8) years on such "repeatdrug offenders."Penalties Involvirrg Non-MandatoryJail TennsPenalties involving non-mandatory jailterms are to be imposed for traffickingoffenses involving lesser quantities of thecontrolled substances or anyother Schedule I or Il controlled substance(except for offenses involving less than 10kilograms of hashish or less than 1 kilogramof hashish oil or less than 50 kilogramsof marijuana unless the offenseinvolves 100 or more marijuana plantsregardless of weight). Persons convictedof such offenses who have no prior, finaldrug-related convictions may be sentencedto a term of imprisonment of up to twenty(20) years and may also be fined anamountnot to exceed the greater of that authorizedunder Title 18, United States Code, or$l,W0,000 if the defendant is an individualor $5,000,000 if the defendant is otherthan an individual. If death or serious bodilyinjury has resulted from use of the substancein question, however, such"first-time offenders" must be sentenced toa mandatory minimum term of imprisonmentof twenty (20) years with a maximumof life imprisonment and may also be finedaccording to the foregoing amounts. Thecourt must also impose a term of supervisedrelease of at least three (3) years onall "first-time drug offenders."Persons convicted of such drug traffickingoffenses who have prior, final drugrelatedconvictions may be sentenced to aterm of imprisonment of up to thirty (30)years and may also be fined an amount notto exceed the greater of twice that authorizedunder Title 18, United States Code,or $2,000,000 if the defendant is an in-idinyl] propanamide or 10 grams or moreof a mrxture or substance containing a detectableamount of any analogue of N-phenyl-N-[1-(2-phenylethy1)-4-piperidinyl]propanamide; or(vii) 100 kilograms or more of a mixtureor substance containing a detectableamount of marijuana.Persons convicted of such drug traffickingoffenses who have no prior, final drugrelatedconvictions must be sentenced toa mandatory minimum term of imprisonmentof five (5) years, with a maximumof forty (40) years imprisonment. If deathor serious bodily injury has resulted fromuse of the substance in question, such"first-time drug offenders" must be sentencedto a mandatory minimum term ofimprisonment of twenty (20) years and amaximum of life imprisonment. In additionto imposing the term of imprisonment,a court may fine such "first-time drugoffenders" an amount not to exceed thegreater of that authorized under Title 18,The Attorney Who CaresWhatever the case. Whatever the Court.Our NationaI/InternationaI Sentencingand Parole Memorandums save precioustime. For You. For Your Clients. When alife is on the line, a second opinion can'thurt.Call Now: 1 -800-241 -0095NATIONAL LEGAL SERVICESSentencing Alternative Planning71 0 Lake View Avenue, Atlanta, Ga. 30308Sentencing and Parole ConsultantsFebruary 1987 1 VOICE for the Defense 11

dividual or $10,000,000 if the defendantis other than an individual. If death or seriousbodily injury has resulted from use ofthe substance in question, such "repeatdrug offenders" must be sentenced to lifeimprisonment and may also be fmed accordingto the foregoing amounts. Thecourt must also impose a term of supervisedrelease of at least six (6) years onsuch "repeat drug offenders."The new Act also substantially increasesthe fines which may be imposed under Section401@) of the Controlled SubstancesAct (21 U.S.C. 841(b) or 1010@) of theControlled Substances Import and ExportAct (21 U.S.C. 960(b)) for drug traffickingoffenses involving less than 50 kilogramsof marijuana (except for offensesinvolving 100 or more marijuana plants,regardless of weight, which are punishableas set forth in21 U.S.C. §841@)(l)(c),as amended), 10 kilograms of hashish or1 kilogram of hashish oil. It also substantiallyincreases the fmes which may be imposedfor drug trafficking offenses underSection 401(a) of the Controlled SubstancesAct (21 U.S.C. §841(a)) involvingSchedule III, N and V controlledsubstances and for cultivation of controlledsubstances on federal property.'Work-Off" ProvisionThe new Act provides that a court maynot place on probation or suspend the sentenceof any manduto~y minimum term ofimprlsonrne~zt. It also provides that such aperson may not be released on parole duringthe term of imprisonment. However,there is a "work-off provision in the newAct which allows a court to impose a termof imprisonment less ffmn the applicablemandatory minimvm term upon motion bythe government seeking such a reducedscntencc and dernonstratina that thc dcl'endanthas rendered suhstan&il assistance inthe investigation andlor prosecution ofanother criminal offender. However, thereduced sentence must still comport withthe guidelines to be established by the SentencingCommission.' F.R.Crim.P.35 isamended to make this latter restriction explicit.Federal ParoleThe Sentencing Reform Act of 1984abolishes the United States Parole Com-12 VOICE for the Defense /February 1987mission. At least one Court has held thatthe US. Parole Commission will go outof business on October 12, 1989: TheDepartmentof Justice and the Parole Commission,however, contend that it will remainin existenceuntil November 1,1992.In the meantime, however, nearly all federalprisoners, except those serving timeunder both old and new mandatory minimumsentencing provisions and, arguably,those with parole ineligibility dates under18 U.S.C. §4205(a) beyond 1989 or 1992.will become eligible for parole within thenext 3 to 5 years. It is thus extremely importantthat a federal practitioner heknowledgeable of the workings of theUnited States Parole Commission.Virtually no federal prisoner serves hisentire sentence actually confmed in prison.Unless earlier paroled. the prisoner will bemandatorily reieased from prison 180 daysbefore the scheduled end of his6 sentence,and the usual prisoners' stay will be furtherreduced by two types of goodtime:statutory goodtime and extra goodtime(also called meritorious goodtime, camptime and indusq time).A prisoner may be released as soon ashe becomes eligible for parole, andprisoners with sentences of five years orlonger must be paroled after serving twothirdsof their sentences in prison. Twothirdsof the sentence is roughly equal tototal sentence minus normal goodtimedeductions.Parole: What is It?Parole, like probation, is a grant of conditionalliberty. It occurs when a prisonerafter serving some portion of his sentenceis allowed to serve the remainder of his fullsentence in the community. A formerprisoner on parole rcmains under thc juris-diction of the United Statcs Pxolc Commission(the "Commission") until theexpiration of the maximum term to whichhe was sentenced. Thus, although free tolive and work in the community, theparolee must obey conditions imposed onhim by the Commission. Failure to do socould mean revocation of parole and returnto prison where he will be required to serveall or part of the remainder of his sentence.Usually, a federal prisoner may not bereleasedprior to the expiration of his sentenceexcept by order of the Commission.In order to obtain release, a prisoner whois eligible will be given a hearing beforea panel of Commission hearing examiner(~),~who regularly visit the variousfederal prisons every other month. Theprisoner may be represented at this hearingby the person of his choice to speakon his behalf. This representative can be,but doesn't have to be, a lawyer.At the hearing, after discussing the casewith the prisoner, the examiner(s) will determinethe prisoner's parole guidelines,and win recommend to the Regional Offkeof the Commission whether and when theinmate should be paroled. This tentativerelease date is subject to modificationeither upward or downward.Within21 days, the Regional Cornmissionerwill send a Notice of Action to theprisoner notifying him of the offieial decisionin his case. This decision may thenhe appealed administratively to the NationalAppeals Board of the Commission.After exhausting the administrative appeal,the prisoner may challenge the Commission'sdecision in federal court, througha petition for writ of habeas corpus, commonlycalled a '2241" petition.A prisoner's case will be reheard atstatutorily-mandated interim hearings, untilhe is released on parole or at the mandatoryrelease date.Parole EligibiliiyParole eligibility is a requisite if theCommission is to release an inmate. Thetype of sentence an inmate is serving determineswhen he is eligible for parole:thus, eligibility is set by the sentencingjudge but affects the inmate throughout hisrelationship with the Cornniission. Thevarious types of adult sentences a judgemay impose and the parole eligibity timeswhich correspond to them are described in18 U.S.C. 84205. The adult sentencesgenerally fall into the following categories:Regular Adult: 18 U.S.C. 54205(a): Aftercompleting 113 term or terms, or aftercompleting 10 years of a life sentence orof a sentence over 30 years."T-1": 18 U.S.C. §4205@)(1): At a timedesignated by the sentencing judge, whichmay not be later than 113 of the sentenceimposed."B-2": 18 U.S.C. §4205@)(2): Eligiblefor release immediately.As above indicated, a federal offenderusually becomes eligible for parole after

serving one-third of his sentence, or less,or even immediately after commencementof his sentence. However, because initialparole hearings need to be conducted only"within 120 days of a prisoner's arrival ata federal institution or as soon thereafteras practicable," in practice no prisoner isreleased immediately. The standard applicationof the parole guidelines discussedbelow also operates to foreclose the possibilityof immediate release.Life terms of sentences of 30 years orlonger must become eligible after serviceof 10 years, but not before.Of course, not all inmates are releasedat this eligibility date. Indeed, a good numberof inmates are never released on parolebut instead serve their entire sentence lessgoudtimt. 'l'l~c relcxr: daisicul dcp~~ds on:I vxrictv ot t;~ctur> ol'which eliaihilitv - - i\a necessary, but not the only consideration.Parole GuidelirresThe Parole Commission and ReorganizationAct of 1976 provides a frameworkfor the release determination. The paroledate is figured by calculating, first, thedefendant's offender characteristicslparoleprognosis1 salient factor score and, second,the severity of the offense. Once these twoitems are determined, the Parole Commissionguideline chart will show a range ofmonths which will generally be servcd priorto release on parole. These "guidelines"indicate the customary range of time to beserved before release for various combinationsof offense (severity) and offender(parole prognosis) characteristics. Thetime range as specified by the guidelinesis established specifically for cases withgood institutional adjustment and programprogress. However, where aggravating ormitigating circumstances warrant, decisionsoutside of the guidelines, eitherabove or below, may be rendered. Thegn~delines appear on a chart which measurestwo factors: (1) offense severity leveland (2) salient factor score.'There are eight offense severity levelsranging from category one or lowestseverity, through category eight or highest.The "offense severity" levels subjectivelymeasure the relative seriousness of thecrime for which the defendant was cnnvicted.All offenses are indexed according toone of the eight offense severity categories.The second component of the guidelinessystem is called the "salient factor score,"which is intended to be clinically predictiveindicating the likelihood of the inmate'sfavorable parole prognosis. The salientfactor score primarily measures the defendant'scriminal history, and other statisticallyrelevant factors. It is based on a10-point evaluation system which, converselyto the offense severity categories,rewards "very good parole prognosis witha score of 8 to 10, with poorer parole prognosisafforded a lower point total.The Initial Parole HearingTiming of the initial parole hearing canbe a key factor in the outcome of any decisionand should be considered by the inmateand his attorney as part of theirstrategy. However, an inmate is entitled toan initial parole hearing within 120 daysof his arrival at a federal institution, or assoon thereafter as is practical. There arethree exceptions to this rule: (1) a prisonerwho is not eligible for parole for ten yearsor longer does not have a right to an initialhearing until at least 90 days prior tothe completion of such minimum term, oras soon thereafter as is practical; (2) a federalprisoner serving concurrent state andfederal sentences in a state institution isgiven ;m ill-pcrsun hearing as soon as feasihlcaitcr his nrrivdl at a fcderal instilulion;and (3) a prisoner who is serving a federalsentence exclusively, but is being boardedin a state or local institution, may receivea federal parole hearing at the state or localinstitution, or may be transferred to a federalinstitution for a hearing.Application for this initial hearing ismade when the inmate completes the appropriateapplication form and an InmateBackground Statement. He may also waiveparole consideration as part of an overallstrategy and apply later. At least 60 daysprior to the hearing, the prisoner must beprovided with written notice of time andplace of the hearing and of his right toreview documents considered by the Commission.These documents include the presentenceinvestigation report (PSI), theUSA 792 form, and the AO-235 form.These last two forms are sent by the U.S.Attorney's office and the sentencing judge,respectively, and they reflect, among otherthings, the prosecutor and judge's recommendationsas to when parole should begranted. Documents from the RegionalParole File will he disclosed to him within40 working days of his request. Documentsin an Inmate's Institutional File will be disclosedto him within 15 calendar days ofhis request. Diagnostic opinions, confidentialmaterial, and material which, if disclosed,might result in harm to another areexempt for disclosure. In such cases, theCommission and the Bureau of Prisons arerequired to identify what material is beingwithheld and summarize its contents.The prisoner's parole representative isthen permitted to review the disclosableportions of his client's file within 30 daysof the initial parole hearing.Several hearing examiner($ visit eachfederal prison every two months to conductparole hearings. The purpose of thehearing is for the examiner($ to discussan inmate's background with him, determineguidelines, and recommend a paroledate to the Regional Commissioner. Hearingsare conducted in small rooms at theinstitution and are tape recorded. Presentare two hearing examiners from the Commission:the inmate, his case manager,and, if he wishes, a representative to speakon his behalf. This representative may bea relative or friend, a fellow inmate, amember of the institution staff, an attorney,or parole specialist. Representativesare not permitted to act in an adversarialcapacity by participating in the questioningor advising the inmate during thecourse of the hearing, but may simplymake a short statement at the end of thehearing. Representatives, of course, canaid an inmate in preparing for the hearing.An attomeylrepresentative can, also, oftenidentify problem areas that might arise duringthe hearing and recommend legal actionto he taken to prevent this.The hearing usually starts when the ex-aminer(~) introduce themselves and explainboth the hearing and appeal procedures tothe inmate. One, or occasionally both, ofthe examiner($ questions the inmate abouthis crime, background, institution recordand activities, and release plans with an eyetoward guidelines calculations. At this timethe examin@) usually, but not necessardy,advise the inmate of their tentativeguideline evaluation.The Parole Commission has recently implementeda pre-hearing assessment procedureunder which the inmate's case file isanalyzed several weeks before the actualhearing. This is not, however, a requiredFebruary 1987 1 VOICE for the Defense 13

procedure. When prehearing assessments nied or a release date in excess of six within 30 days of the entry of the decision.are done, however, inmates sometimes are months from the date of the hearing is set, In practice, this means within 30 days ofgiven written notice, before theh- hearings, the prisoner must also receive in writing the date on the Notice of Action, regardofthe examiner@)' initial assessment of a statement outlining the reasons for this less of when the inmate received the Notheirguidelines. This initial guidelines as- decision. Similarly, if a decision outside tice. The Commission has provided,sessment is, of course, subject to change of the guidelines is made, the Commission however, that since Notices of Action areat the hearing, but is considered by the ex- must advise the inmate in writing of the not typically date stamped in the instituaminer(s).specific factors and information relied tion, any appeal received within 45 daysAfter permitting theinmate to speak, the upon for departing from the guidelines. of the date of the Notice of Action will beexaminer(s) ask the representative if he The Commission's decision is normally accepted. If no appeal is filed within thiswishes to make a statement. After all state- based to a great extent on information con- time period, however, the decision renmentshave been made, the representative tained in the prisoner's PSI, especially that dered stands as the fmal decision of theand the inmate leave the mom while the section called the "prosecution version." Commission.examiner(s) confer; the case manager re- The description included in the PSI of the The grounds for appeal specified by themains in the hearing room. prisoner's offense having been usually Commission are:The inmate and representative are then provided by the prosecutor, may he inac- -That the guidelines were incorrectlyasked to return to the room, at which time wrate and heavily biased against the applied.theexaminer(s) state what their recommen- prisoner. Thus, a prisoner's representative -That a decision outside the guidelinesdation to the Regional Commission will be. at the parole hearing will normally have was not supported by the reasons or factsThe Pre-Sentencelnvestigation (PSI) is to supplement the Commission's file with as stated.the document upon which the Commis- accurate information, and challenge any in- -That especially mitigating circumsionrelies most heavily. The PSI is a correct information, and take further legal stances justify a different decision.report prepared by a probation officer at action to have the PSI corrected. -That a decision was based on erronethejudge's request prior to sentencing, and If inaccurate information in the PSI is ous information and the actual facts justiitcan contain a summary of the inmate's identified, and it should he before the hear- fy a different decision.prior criminal, medical, family and em- ing, an attempt to have the sentencing -That the Commission did not followployment record as well as a description judge order corrections is advised. This correct procedures in deciding the case,of the current offense behavior. This may require making a motion pursuant to and a different decision would haveresultdescriptionis commonly calledthe"prose- 28 U.S.C. 52255 asking that the sentence ed it the error had not occurred.cution version." It is this version of the he vacated due to the fact that it was based -That there was significant informationoffense that the examiner(s) generally look on inaccurate information; or in the alter- in existence but not known at the time ofto in determining a prisoner's "offense native, for a correction of the PSI pursuant the hearing.severity" score. to F.R.Crim.P. 32. Once the corrections -That therearecompelling reasons whyare accepted, the Parole Commission a more lenient decision should be renderedThe Notice of Action should be notified. on grounds of compassion.A prisoner may dispute the accuracy of The National Appeals Board must in-The examiner($ may recommend one of any information in his file. The Commis- form the inmate in writing of its decisionthree dispositions to the Commission's sion must resolve such disputes by the and the reasons for it withrn 60 days ofRegional Officer: (1) an effective parole "preponderance of the evidence'' standard. receipt of the appeal; however actualdate within six months of the hearing; (2) Note, of course, that the Commission has response timeis oftenlonger. The Nationala presumptive release date (either by parole a great deal of discretion in its decision to Appeals Board may affi, reverse oror by mandatory release) more than six grant or deny parole, and challenges to the modify the decision or order a rehearing.months after the hearing; (3) a "set-off" or Commission's use of erroneous informa- No appeal may result in a decision morecontinuation for a ten-year reconsideration tion are not necessarily effective. It is, adverse to the inmate.hearing if the projected mandatory release thus, best to have the sentencing judge is- TheNational Appealmust be submitteddate is within 10 years of the hearing date. sue an order directing that the PSI be cor- to the Regional office, which then trans-The Regional Commissioner may accept rected if such inaccuracies are contained mits it to Washington, D.C., along withtheir recommendation, modify or reverse in the report. the prisoner's case file. Forms are availaitif it is outside the guideline range, orble from the prisoner's case manager formodify it to bring it to a date not to ex- Appeals and Furthw Proceedings the appeal. Representatives may, and oftenceed six months from the recommended Administrative Appeal do, submit a memorandum along with thedate, or refer the case to the National Com-form in support of and explaining the ismissionersfor further consideration. With few exceptions, any decision made sues raised on appeal.The Regional Office must inform the in- by the Parole Commission may he apmateof its decision within 21 days of the pealed administratively by the inmate. Sub- inter in^ Hearingdate of the hearing, usually on a form mission of a written appeal by the inmatecalled a "Notice of Action." If parole is de- to the National Appeals Board must occur If the prisoner is not released soon after14 VOICE for the Defense /February 1987

his initial parole hearing, he is statutorily employed by the Commission to assist the parolees with a lesser salient factor scoregranted "interim" review hearings. An in- Bureau of Prisons in the maintenance of will be released after three suchyears. Afmatewill have an interim hearing every 18 institutional discipline. Guidelines for these ter five years of supervision in the commonthsif he is serving a sentence of less decisions have been enacted by the Com- munity, the Commission must terminatethan seven years, or every 24 months if he mission. jurisdiction unless it fmds, after a hearing,is serving a sentenee of seven years orthat there is a likelihood of further crime.more. However, in the case of a prisoner Case Reopening An inmate must have appropriate releasewith an unsatisfied minimum term, the firstplans made before he embarks on parole.interim hearing will be deferred until the Any finally-decided case may be reo- Once on parole he must comply with anydocket of hearing immediately preceding pened by the Regional Commissioner upon conditions imposed upon him by the Comthemonth of parole eligibility. The pur- receipt of new information of "substantial mission. These conditions include, but arepose of these hearings is to consider any significance." There are six grounds for re- not limited to, that the pamlee report to thissignificant developments or changes that opening a case: (1) receipt of favorablein- probation officer, not associate with permayhave occurred in the prisoner's status formation which is "clearly exceptional"; sons having a criminal record, not act assubsequent to the initial hearing. (2) receipt of new adverse information; (3) an informer, not possess weapons, remainFollowing the interim hearing, the Com- institutional misconduct; (4) new or addi- employed, not use drugs, and not use almissionmay: (1) order no change in the tioual sentences; (5) convictions after cohol to excess. In addition, restrictions onprevious decision; (2) advance apresump- parole revocation; and (6) changes in or parolee travel may be imposed.tive release date because of superior pro- insufficiency of release plans. When a case Parole may be revoked at any time if thegram achievement or other exceptional is reopened, the inmate receives a"special parolee violates the conditions of releasecircumstances; (3) retard or cancel parole reconsideration hearing." embodied in his particular parole contract.for disciplinary reasons; or (4) if the The Bureau of Prisons may petition for Revocation of parole can result in reincarpresumptiverelease date falls within six a reopening of the case and consideration ceration for all or a portion of the inmate'smonths of the interim hearing, it may be forparole prior to thedatepreviously set, parole term, i.e., the portions of the sentreatedas a pre-release review. for good cause, such as, emergency, hard- tence term remaining when he wasIt is the policy of the Commission that ship, or other extraordinary circumstances. released on parole. This is true regardlessa presumptive parole date may be ad- In addition, an inmate may receive of the time that the revocation or the viovancedonly for sustained superior pro- reductions from his presumptive parole lation occurs.gram achievement or other clearly date based upon "superior program Followingrevocation, aparoleereceivedexceptional circumstances. It is the intent achievement" beyond the normally good credit for time under supervision in theof the Commission to encourage meaning- institutional record which is elmost always community unless convicted of a crimeful voluntary program participation, not a prerequisite to parole release. The max- committed while under supervision. Asuperficial attendance in programs mere- imum permissible reductions range from parolee who has absconded from supervilyin an attempt to impress the parole 1 month for inmates who have received sion is credited with the time and the datedecision-makers. Therefore, the advance- original presumptive parole dates of 15 to of release to supervision to the date of suchments permitted for superior program 22 months, to as much as 13 months for absconding.achievement are dehberately kept modest. inmates with presumptive parole date of 91months or more. Partial reduction underFederal Prison Designation andPre-Release Review the maximum for which the inmate is eligiblemay be given if, for example, an in-Conditions of ConfinementPrerelease reviews are a special type of mate with superior program achievement Beyond simply the amount of time, ifinterim hearing, held at least 60 days pri- is subject to a minor disciplinary in- any, the convicted defendant will spend in-or-to a presumptive release date in order fraction. carcerated, where he or she will spend thatto determine %hether the conditions of atime is of utmost importance to the defenpresumptiverelease date by parole have Relense on Parole dant seeking counsel.been satisfied," that is, whether the inmateThe 47 institutions in the Federal Prisonhas maintained a satisfactory institutional An inmatemay beparoledC'to the street," System have been grouped into 6 securityconduct record since his last hearing and to a state, local, or immigration detainer, levels. An institution's security level iswhether release plans are in order. After or to a community treatment center (CTC). based upon the type of perimeter secnriaprerelease review, the Regional Com- Once "on the street" he will remain under ty, the nnmber of towers, its externalmissioner may exercise one of the first thejurisdiction of the Commission andun- patrols, its detection devices, the securitythree options described above, or he may der the supervision of a probation officer of housing areas, the type of living quartapprovethe parole date hut advance or until the end of his sentence term or until ers, and the level of staffing. Institutionsretard it for purposes of development and the Commission terminates ifs jurisdiction. labeled "Security Level 1" provide the leastapproval of release planning. A parole res- Parolees who have a salient factor score restrictive environment and the "Securitycission hearing may he ordered where mis of 8 or better will normally be terminated Level 6" institution is the most secure. Adconductappears to be present. Decisions after two years of supervision without new ditionally, prisons in a special administratorescind or retard parole are sanctions criminal conduct or serious violation; tive category may contain all six levelsFebruary 1987 1 V'OlCE for the Defense 15

when non-security considerations outweighsecurity concerns. (For example, the FederalCorrectional Institution at Alderson,West Virginia, has inmates in all six securitylevels, but all of the inmates arefemale).The Bureau of Prisons operates only oneLevel 6 facility, the U.S. Penitentiary inMarion, Illinois, which houses inmateswho require a high degree of supervisiondue to a demonstrated history of violence,institutional misconduct, and predatory h ehavior. Level 1 institutions house inmatesprimarily serving comparatively short sentencesor completing longer sentences begunelsewhere. These offenders are notviolent and are not considered escape risks.Presently, Security Level I inmates accountfor approximately 23% of the inmatepopulation.Parenthetically, the Federal Prison Systemcurrently operates 3 facilities forprisoners with medical problems: FCILexington for Level 1 inmates, the MedicalCenter for Federal Prisoners at Springfield,Missouri, for inmates for whom amore secure facility is required, and thenew Federal Medlcal Center in Rochester,Minnesota.The security level of the institution towhich an inmate is initially assigned is determinedunder guidelines on the basis ofthe severity of the current offense, the expectedlength of incarceration, the severityof offenses resulting in previous imprisonment,history of violence, history of escapes,status before commitment (whetherreleased on recognizance or a voluntarysurrender case)," and detainers. TheBureau of Prisons looks to the pre-sentenceinvestigation (PSI) report to obtain most,if not all, of this information.In estimating length of incarceration, theFederal Prism System begins with thelength of the sentence and then applies apercentage factor to take account of the factthat people are generally released beforeserving their full terms. The judge's statedsentence thus has some impact on theinmate's original security classification,and differences in sentences could producedifferent security classifications. Sentencelength is not the major factor, however.A variety of other considerattons also influencethe institution to which an offenderis sent. One of them is the proximity of theinst~tution to the offender's home.However, the nearest institution of the ap-propriate security category is often a substantialdistance from the homecommunity. Some considerations (such asmedical problems) may override the securityclassification, hut proximity to theoffender's home does not.The Federal Prison System regulationsindicate that a judicial recommendationthat an inmate be assigned to a specific institutionor a particular kind of programwill generally not override the securityclassification, but that every effort will bemade m follow such recommendationswhere consistent with the security classification.In any event, when rejecting thecourt's recommendation, the Federal PrisonSystem will set forth in writing the reasonsfor rejection. In practice, the FederalPrison System may be even more accommodatingthan the regulations suggest.Offenders may also be placed in nonfederalfacilities. Generally, these areusedonly for women and for men serving sentencesof 60 days or less, but there areseveral exceptions to the 60-day limit formen. For example, the Federal Prison System has contracted with state and local facilitiesto house federal prisoners. Anindividual given a short-term work-releasesentence (in sonie cases up to a year) willordinarily be confined in a county prisonwith work-release facilities. Offenders areinitially assigned to community treatmentcenters only upon a judge's request. In theabsence of such a request, an bffender islikely to he assigned to such a center onlyfor the last few months before release. Themore an individual needs to be reintegratedinto society, the more likely it is thathe will be assigned to a community treatmentcenter within 120 days prior to hisrelease. As a result of prison overcrowdingin Level 1 facilities, however, the FederalPrison System has recommended thegenerous use of community treatmentcenters for confinement of short-termoffenders.Certain offenders, by virtue of theiroffense only, do not qualify for Level 1security facilities. For example, offendersconvicted of high-security drug offenses,i.e. $1,000,000 and up, who are consideredto be "leaders or prime motivators"of a sophisticated, well organized criminaloperation do not generally qualify forinitial assignment to a Level 1 facility unlessapproved by the Regional Director forthe Federal Prison System. An inmate sen-tenced under the Racketeer Influenced andCorrupt Organizations (RICO) Act, 18U.S.C. $1961, or Continuing Criminal Enterprise(CCE), 21 U.S.C. $848, may notbe placed in an institution lower than SL-2for at least the first year of commitmentby the Regional Director. In addition, certainoffenders-for example, deportablealiens, violent offenders, etc. -will oftennot qualify for Level 1 security facilities.Basic policy, however, is to assign inmatesto the least restrictive security categoryconsistent with adequate supervision.Transfers are not uncommon within thefederal prison system. Fallowing initialplacement, the appropriate category isreviewed from time to time. The reviewtakes account of changes in the informationused to make the inital security classification.In particular, the inmate'sexpected duration of incarceration is recalculatedon the basis of Parole Commissionaction. It also takes account of behaviorwhile incarcerated. Transfers or redesignationscan be initiated by theprisoner through his Unit Team at the institution.If the Unit Team recommendstransfer to the warden, a referral will bemade to the Bureau's appropriate regionaloffice for approval.ConclusionWith statistics showing that an overwhelmingnumber of criminal casesprocessed through the federal courts resultin prison sentences, and with the adventof the new sentencing legislation describedabove, a knowledge of how the UnitedStates Parole Commission and the FederalPrison System work is invaluable to thefederal criminal law practitioner in orderto assure affective representation of hislherclient.Unfortunately, sentencing and postsentencingconsequences of the actual sentenceimposed, are subjects too few practitionerspay much attention to. Manyattorneys consider the case over when theverdict is returned or the client enters aplea of guilty and are thus, not in a positionto render competent advice to theirclients about future rights.Sice statistm published by the administrativeoffice of the United States Courtsindicate that of all criminal cases processedthrough the federal system, approximately78 percent result in conviction, the amount16 VOICE for the DeJ211se / February 1987

1. See text acmmpwying To. 2, in!2. ke texz accompanying fn. 1, supw,lrrslingoNenferothcrwise subkc1 lua wan-&on nlinimum term ndil such date.yuireo that two hearing examiners concur in apuolc mmmendatiun. This revonin~endalionmuat follow a hcaring. The law was sitem abontwhether both examiners had to bc prosent at the~gbutths~omrmssian~ptar(icewnto require, as a geml ~le, &at bxh ealninmatendthehearing. H.R. 5241seeksto dllethz.Commission m ufilimits resottrcmmost elfecfive& by requiring that the Codsinn n0longer sahew 10 the general ~ lthti e two hearingeuuoiners conduct a hearing. Imtead, oneexarpliner may conduct the h&ng wilb the sc-mediately upon sentencing is likdy ro spmdsweral days iu a Id facilitr Woteking tFaported by the bf~rshald Service h? the institutionof init* assi&ww1t, wd may also spendrim in other local jails or feded prisms in themumoft~~n5ponatnn Time spetll in IWjaiIsand some Federal inMiUiuns in O h trautntiic,partlculsrly for OnendBls PYpnimCing tbeirfirs ~~~. mmmitment. Henee. a %lufltam saxrendci'pmcedurc has heen dcvelupd'umlerwhich thc oNcndcr my travel uwccompaniedlu tkdcsignated institution and prwd hin~sclfthese for mireofsentam. Usesf thts prowdute is entirely dhin thedimetion ofthecoun.Tke fm that a oriminul def@ndantis not permittedtamin baa bail pding appeal 6oesnot necessanlvmean thut fib win not be ~Ermiiledby the sentencing jud#e to wluntarily surrenderto the inrtitutiundaig~latd fir thesc~irc01 his sentenffi.TheimportewmfaSroluntary surrender"on-, not be ovemmphmzed. Ma offendern who arepctmitted to wlu~twly surrander by the senrasingjudge will be design~tedby Ure Boreauof Pdsons to sarc their sentencein a minimum-. .tory ufviolencc, lhcrcvcrily ofoffenres resultingin prcviour imprisonment, or, alicll slaturVOICE ADVERTISERSAustin Cow Reporters. ...........57CDLP Publications .............. .44CDLP Seminars.. ................ 7CTAC Tentative Schedule .........21Freelance Enterprises .............52Miem Farensics. ................. 4National Legal Serviw ........... 11

Aliens As Criminal Defendants: Strategies toAvoid Adverse Immigration Consequencesby Alan VomackaJudicial RecommendationAgainst Deportation (JRAD) cir. 1972).Velez-Lomo v. INS, 463 F.2d 1305 @.C.Immi~ration Court cannot useA. ~~*h~~@,: 8 . u 1251@)(2); ~ ~ INA the conviction ib substantiate a charge of74lhW7) - .-,-,,-,.deportability under INA 241[a)(4).A timely recommendation against But will not prevent deportationdeportation by sentencing court precludes purSuaot to other sections (alien mw-INS from usine conviction as basis for gling, prostitution, etc.) even if crime isdeportation undir 8 usc 1251(a)(4), INA ah One of moral turpitude. Jew Ten v.241(a)(4).B. Areas Where Applicable:Only valid where deportationcharge is based on conviction of crime involvingmoral turpitude under section241(a)(4) of the Immigration Act (INA).Is applicabIe to both provisions ofthis section (single crime within five yearswith sentence of one year or more, and hvocrimes provisions).INS, 307 F.2d 832 (9th Cir. 1962); Matterof Corral-Fragoso, 11 I&N 529 (BTA1966).A separate Recommendation isneeded for each conviction, even if theyarise from same scheme. Manw ofparod;,17 I&N 608 (BIA 1980).2. Exclusion [barring alien from enteringU.S. or receiving green card]:Recommendation is also bindingon Service vis a vis any exclusion chargebased upon crime involving moral turpi-tude. mussen en v. ~obinion, 163 ~ .2dC. Areas Where Inapplicable:732 (3rd Cir. 1947); Matter of C, 6 I&NRecommendation is ineffective 709 (BIA 1955); Matter of X; 9 I&N Dec.where deportation charge is based on crime121 (BIA 1960).involving narcotics including marcuana, 8 But only effective as to crimesUSC 1251(a)(11). INA 241Calllll: urosticommitted-within jurisdiction of the United... .. ... ,.Atutibn, 8 USC 1251(a)(E); INA 24I(a)(E);states.alien smuggling, 8 USC 1251(a)(13), INA 3. Discretionary Relief:241(a)(13); possession of unlawful Recommendation bars INS orweapons 8 USC 1251(a)(14), INAImmigration Court from statutorily pre-241(a)(14).cluding recipient from eligibility for valu-Even if crime may he one of moral able forms of discretionary relief fromturpitude, recommendation is not effectivedeportation (voluntary departure, suspenifcharge other than 241(a)(4) is lodged. sion of deportation, etc.) for failure m es-Jew Ten v. INS, 307 F.2d 832 (9th Cir.tablish good moral character pursuant toIOL'n8 USC 1101(0(3): INA IOl(0(3). Giambuncov. INS, 531 F.2d 141 (3rd Cir.1976); Matter of Goneales, 16 I&N Dec.D. Effect: *. 134 (BIA . -- 19771. ,1. Deportation [expelling alien from Giarnbanco and Gontalez estab-US.]: lish accepted mle, but U.S. v. Gmge, 534Recommendation is absolutely F.Supp 570 (S.D.N. 4 1982) holds thatbinding and leaves RQS with no discretion. discretionary relief from deportation can18 VOICE for the Defme / February 1987he denied if deportation is sought undersome section of the Act other than 8 USC1251(a)(4). However, Gonzalez also iuvolvedcharge under another section of theAct. George relies on strict language of1251@); Gonmlez relies on policy behindprovision for JRAD. This issue may be*pushed" in future by INS.Moreover, in 3rd Circuit convictioncannot be even considered in determinationof whether to grant discretionaryrelief (Giambaaco, supm) but other circuitshaven't ruled, and BIA won't applyoutside 3rd Circuit (Matter of Gonzales).This holding of Giambanco is unlikely tohe adopted elsewhere.4. Afer Withdrawal of Guilty Plea:Courts split on validity of JRADentered after new trial or writ of error corantnobis granted.9 Sakow I,. INS, 331 4.2d 34 (3rdCir. 1963) (JRAD effective if original sentencewas invalid).Contra U.S. ex re1 Piperkofl v.Esperdy, 267 F.2d 72 (2nd Cir. 1959);MatferofP, 9 I&N Dee. 293 (BIA 1961).In each case the court's only reason forresentencing was to allow entry of JRAD.See People IJ. Borja, 178 Cal.Rptr. 287 (1981) (court denied JRAD asineffective because not obtained within requiredperiod).E. Procedure:1. 'IFme Requirements:The recommendation MUST bemade "at the time of first imposing judgmentor passing sentence, or within 30days thereafter."Strictly applied-nwrcpro tuncorder ineffective notwithstanding ignoranceof sentencing court, counsel or defendant.Velez-Lozano v. INS, 463 F.2d 1305(D.C. Cir. 1972); Marin v. INS, 438 F.2d

932 (9th Cir. 1971).Even if motion filed timely andbearing held within 30 days of sentencing,court MUST make ruling within 3 dayperiod or ineffective. Matter of Tafoya-Gutierrez, 13 I&N Dec. 342 (BIA 1969).Placing on probation-evenwhere entry of judgment and imposition ofsentence deferred-will start 30 day period.Matter of hesquita, 16 I&N 318(BIA 1977).2. Notice Requirements:Notice of hearing MUST begiven "to representatives of the interestedState, the Service (INS) and prosecutionauthorities who shall be granted opportunitym make representations in the matter."8 USC 12511bN2). .,.,Failure to comply renders recommendationsnull and void. Matter ofI, 6 I&N 426 (BIA 1954); Matteraf Plum,14 I&N 463 (BIA 1973).Have order granting JRAD recitethat proper notice was given. See Appendix.Where INS is unaware of criminalproceedings and Judicial Recommendationwill not cure grounds of deportability(see LC. above), submission of motionand notice to INS may lead to the Defendant'sdeportation which otherwise mightnever occur. See Part F. below.8 CFR241.1 provides as follows:PART 241-JUDICIAL RECOMMENDA-TIONS AGAINST DEPORTATIONSection 241.1 Notice; recommendation.For the purposes of clause 2 of section241 (b) of the Act, notice m the districtdirector having administrative jurisdictionover the place in which the court imposingsentence is located shall be regardedas notice to the Service. The notice shallbe transmitted to the district director by thecourt, a court official, or by counsel forthe prosecution or the defense, at leasf 5daysp~ior to the court hearing on whethera recommendation against deportation shallbe made. If less than 5 days' notice isreceived and sufficient time remains to prepareproper representations, due noticeshall be regarded as having been made.When less than 5 days' notice is receivedand sufficient time is not available to prepareproper representations, but the 30-daystatutory period will expire before properrepresentations can he prepared, an objectionshall be interposed to the recommen-dation against deportation on the groundthat due notice was not received. If the noticeis received after the running of the30-day statutory period, it shall be regardedas an invalid notice and whatever Serviceproceedings are warranted shall beinstituted irrespective of the recommendationagainst deportation. The district director,or an official acting for hi, inpresenting representations to the court,shall advise the court the effect a favorablerecommendation would have upon thealien's present and prospective deportability.A recommendation against deportationby the sentencing court made to the districtdirector receiving the notice shall beregarded as made to the Attorney General.(Emphasis added.)However, a timely JRAD maystill be valid notwithstanding lack of notice(or faulty notice) to INS if sentencingcourt still disposed to consider INSrepresentations. Cerujo v. lNS, 570 F.2d1323 (7th Cir. 1978); Haller v. Esperdy,397 F.2d 21 1 (2nd Cir. 1968).Note that entry of JRAD within30 days is strict statutory requirement, butfive-day notice provision involves a degreeof flexibility.In Houston, notice is given to theDistrict Director of INS at 2627 Caroline,Houston, 77004. It is advisable to obtaina date-stamped file copy or certified mailreceipt. To arrange band delivej. withoutlong waits in line, consult a local immigrationattorney. INS office hours are unpredictable.F. Strategy:INS District Counsel's office willcommonly respond to your Motion by filinga Memo in Opposition. They often argue(1) that criminal court should leaveINS considerations to the ImmigrationJudge, and (2) h t the JRAD should be deniedbecause the defendant w~ll then bemotivated to never break the law again,since in some cases deportation dependsupon having two convictions.You can respond to first argumentby pointing out that:only sentencing court can grantJRAD.Congress gave criminal courtthis authority for a reason.If JRAD is not granted, the ImmigrationJudge will often have no choicehut to order deportation: ImmigrationJudges do not have any authority to grant"probation" or "wanting" to an alien.Deportation is the only available penalty,and it is mandatory unless the alien qualifiesfor some waiver or affirmative relief(see separate outline in this handout).You can respond to the second argumentby pointing out to the criminalcourt that the provisions for deportation orexclusion based on two criminal convictions,are very strict and mandatory innature.For example, an alien convicted oftwo petty theft cases, ten years apart,would be subject to deportation even ifgiven only small fines. See 8 USC1251(a)(4). The alien would be excludable(and ineligible for resident status) even ifthe two petty thefts were committed whileless than 18 years old. See 8 USC1182(a)(9). Criminal court judges canoften he persuaded that a person mightcommit two petty thefts but still notdeserve deportation.Argue that state legislature, whenproviding range of penalties for variouscrimes, did not take into account the immigrationconsequences. Thus, deportation"stacked" on normal state punishment canbe seen as cruel and unusual punishment.When appropriate, point out thatdefendant cannot make restitution to victimif he is deported.Point out the often disastrous consequencesto the defendant's family if heis deported. For example, U.S. citizenchildren may suffer de facto deportationbecause the sole wage-earner must leavethe country.Refer to sample Motion for JRADand memo in support, included in appendixto this handout.PardonsA. Authority: 8 USC 1251(b)(l); INA241m1).B. Effect:A "full and unconditioned pardonby the President of the United States or bythe governor of any of the several states"will prevent a deportation based on chargeunder 8 USC 1251(a)(4) (moral turpitdecrimes only).Not effective for narcotics, 8 USC1251(a)(ll)-may be used for otherFebruary 1987 1 VOICE for the Defense 19

grounds, (see Matter of S, 7 I&NDec. 370 will usually have to be made by habeas mation was presented, or that it was dis-(BIA 1956), but doesn't preclude deporta- corpus since the defendant's alien status missed because based on mistake, falsetion on grounds other than 1251(a)(4) will rarely be shown in the trial record. information, etc. Also must show nocharge.Tumas decision focuses on whether felony convictionin last five years, and didIf entity other than governor has trial court should have realized that defen- not receive conditional discharge orsupreme authority to grant pardon and dant was an alien. Key issueshould be, in- deferred adjudication for arrest indoes, effective to bar deportation. Mafter stead, what the defendant could have question.of C.R., 8I&NDec. 59 (BIA 1958); Mat- known about effect of conviction.ter of D, 7 I&N Dec. 476 (ElIA 1957). Similar statute. in California was held C. Effect: Allows denial of arrestrecordIf pardon unobtainable under state to provide good cause for withdrawal of in any context except testimony under oathlaw, then conviction cannot be used as guilty plea if possibility of imigration con- in a "criminal proceeding." INS matters,. basis for deportation under 241(a)(4). Mat- sequence is shown. Peoplev. Guman, 172 including deportation hearings, are civil inter ofE. V,, 5 I&N 194 (BIA 1953); Mat- Cal. Rtr. 34 (1981). nature.ter of H, 6 I&N 90 (BIA 1954).Where counsel fails to advise ofdeportation consequences, plea can be va- D. Value in INS Cases: Would allow theVacation of Judgment cated based on ineffective assistance of alien tolegally avoidmentioningacriminalcounsel. Edwards v. StateofFlorida. 393 arrest which might point to a ground ofA. State Court: So.2d 597 (Fla.App. 198I), review den., deportation that does not requirea convic-'. Remedies:402 So.2d 613 (Fla. 1981); Common- tion. For example, expunction of an arrestWithdrawal of plea of guilty. wealth v. Wellington, 451 A.2d 223 (Pa. for selling marijuana could avoid exclusionPost-conviction writ of habeas 1982). under 8 USC 1182(a)(23) for "reason tocorpus. Where defendant enters plea pursuant believe" alien is involved in drug2. Grounds: to plea bargain and bargain not followed trafficking.Newly-enacted Art. 26.13, (e.g., failure to grant JRAD), especiallyTexas Code of Criminal Procedure: when not advised of right to withdraw plea E. First Offender Statutes:(a) Prior to accepting a plea of guilty or pursuant to state laws. People v. Johnson, 1. Fedeal: former 21 USC 844@)(1),a plea of nolo contendere, the court shall 10 Cal. Ap. 3d 868 (1974). repealed as of 11-1-86. Seenew 18 USC,admonish the defendant of3607 for similar provision, not yet con-. . . (4) the fact that if the defendant is B. Federal Court: strued by courts.not a citizen of the United States of Am&- * Extremely difficult to obtain. For any person charged withea, a plea of guilty or nolo contendere may No obligation to warn of possible simple possession of narcotics wifhoutresult in deportation, the exclusion from deportation consequences because is a col- previous conviction for same offense.admission to this country, or the denial of [ateml consequence. Fruchhnan v. Kenton, Court may defer proceedings,naturalization under federal law. 531 F.2d946 (9th Cir. 1976); Steinsvikv. without adjudication of guilt, and place(c) In admonishing the defendant. ..sub- Vinzant, 640 F.2d 949 (9th Cir. 1981). defendant on probation for up to one year.stantial compliance. ..is sufficient, unless See FRCrP 32 and 35, 28 USC Upon successful completion ofthe defendant affirmatively shows that he 2255 and 28 USC 1651(a) (coram nobir). probation, case is dismissed and no conwasnot aware of the consequences of his Ineffeciive assistance of counsel viction is deemed to have occurred.plea and that he was misled a harmed by argument-see Stradler v. Garrison, 611 Person only eligible once.the admonishment of the court. F.2d 61 (4th Cir. 1979); see also U.S. v. Under 844(b)(2), arrest wasCalifornia, Massachusetts, Oregon, Russell, 686 F.2d 35 (D.C. Cir. 1982). deemed never to have occurred whereper-Connecticut and Washington have similar Motion to reduce sentence under son was 21 at time of commission oflaws. Rule 35 negates first sentence, (Matter of offense.Texas statute does not specify the Martin, 18 I&N Dec. 226 (BIA 1982)) Efict: not deportable under 8result of a failure to provide the warning. (Colorado version of Rule 35) but must be USC 1251(a). Maner of Werk, 16 I&NOnly Texas decision is Tomos v. State, made within 120 days of sentencing (unless Dec. 234 (BIA 1977); may still be exclud-707 S.W.2d221 (Tex.App.-Houston [Ist sentence illegal). able in drug cases under212(a)(23), whichDist] 1986), petition for discretionary Rule 35 amended effective Novem- does not require a conviction.review fded. In Tomas the Court of Ap- ber 1, 1986 to be much less useful in such 2. State:peals held that the appellant failed to meet case. Person sentenced under statutethe requirements of subsection (c), above.equivalent to 21 USC 844(b)(1) is notsub-The record did not indicate the defendant's Expunction ject to deportation for that offense. Mattercitizenship but there were numerous refer-of Werk, suptn; Matter of Haddad; 16 I&Nences to his activities in Canada and to his A. Aurhority: Art. 55.01 et. seq., Texas Dec. 253 (BIA 1977); Matter of Kaneda,eight years of residence in the US. Code of Criminal Procedure. 16 I&N Dee. 667 (BIA 1979); Matter ofIf the defendant must prove actual Sedo, 17 I&N 550 (BIA 1980).harm (such as imminent deportation) under B. Requirements: Essentially must show Not applicable if state statutethe Texas warning statute, the challenge that, after arrest, no indictment or infor- permits use of conviction for some state20 VOICE for the Defense /February 1987

&st: W' stahlie -ply withCongmsiand intent to give second uppormnityin life without cmviciipn fernaidingfor some state puwse? &n&, sup.Plea of guilty, though, can bemd as an Ws&n m diser&nary determinationof eligibility for vdwy.f"ydeparture eiren though m't automaticallypreclude eligihilily @want to 8 USef l(ll(f)(33. Mamr af Seda, sup.D. YWh Offders.Fe&d YOU@ Garreetions Act, former18 USC 5a05-5026, is repded as of10-12-84.* Savings clausesav~ somehenefitsfor eliibic slim for offenses cdttedbefore repeal. See also US. v. Ro~mo,U.S.D.C. NW M ~ iNO. a CR-84-170[l I-%84).Young AduIt Offendexs Art @orages 22-25], 18 USC4216, repealed =of11-1-86.E. Swrun@ry & Texas Sfafutes fop Aemovalrf DiSabiIZttap:1, P~olmfwi: Sucfim&l completkmof phatim under Art, 42.1Z 8wttlon 7,C.C.P., which providesfor removaI of *dlpenalties and diibilitic%," will nonwnoveeffects of conviction for 3mmi~:ratioa purposes.Mmer of &it&, I.D. 2965 (BIAl984).2. Defe~rad AMwq: Under Section3d of Aft. 42.12, the dehaant givendeferred adjudication is deemed not to hawbeen mnvicted for indgcation purptges.Matter of Garcia, I.D. 2995 (BTA 19851.3, C~n&iond Diwharge for First(ZftEensa: Section 4.12 af Art. 4476-15,Texas Controlled Subatam& AcZ, allowsp~cedwe similar to deferred adjudfmtiou,and ape&cally states that "a disshm ordi8misd derthis section shalt not hedeemed a conviction."* By analogyto Maner of Catdo,conditha1 di%h;rrge would avoid immigrationcomqueufas. See Gear& v.557 S.W.Zd 787 (WhApp, 1977).General Reference:IMMIGBATIDN LAW & CRTMES, treaiiseprmlrxlby Nationd Immigration Pmjectand pubW by Clark &&an a-*****~mwimm umw ~IU~~~LR~W'EIONdW&Wi?EWA7lDdEluV@ 39XCLuSroYdeposation of alienmvieted ofTO THE HOM6RABLE JUDGB OF acrime or crimes shall not apply. .,SAID COURT:if rhe court wntenciilg such alien fotCOMES NOW the Defendant, - such crimes shall make) at the timeby ahd wugh hh attorney of rewd, and of first &ping judgment I)r pas&files this Motion for a Jud'iial Reconmen- ing sentence or mithin thirty day8&tion kgairrr;tDqm@tion and usio ion. therenftw, a-recomond&en totbeIn support of this Motion, Defendant Attorney General that such aliennotwould mtfully show the Court that: be deport&, dpe notice having been1.This Court has the per4 as paVt of itsauthority to impe a judgment and sen- If this Court determim to grant this Moteweupon Defendant, to cletermine tion, its Chdar, althoua termed a ''Rwontwhetherany convi&m had in this case rnendatfonn'@ the AItarney General of themay be used as a hasis for the deportetionor exclusion of Defendadt from Sb UUnit-ed Sh'tatH. This power is granted to theC m by Section 241@)@) 2)f thebmigra-The provisions. . . r@pecting UleUnited Stare, In f&t will be binding uponthe Attorney Gem1 and theImmigratianand Naturalization Service.If this Caurt decides to deny this Mo-

tion, then in certain circumstances a convictionin this cause might lead inevitablyto Defendant's deportation or exclusionfrom the United States, without any discretionon the part of the ImmigrationService to withhold that sanction.11.Defendant is a citizen of theRepublic of South Korea, and has been alawful permanent resident of the UnitedStates s i n c e . His wife is also a lawfulpermanent resident; their one child isa citizen by birth of the United States ofAmerica. Mr. considers the UnitedStates to he his home and the place wherehe hopes to spend a productive life. Itwould cause great hardship to him and hisfamily if he were deported or excludedfrom this country. Defendant is charged inthis case with the offense of "AggravatedAssault with a Motor Vehicle," in that heis accused of having recklessly caused seriousbodily injury to another through anautomobile accident. The ImmigrationService may consider any conviction forthe offense charged as a crime involvingmoral turpitude.rn.Under Section 212(a)(9) of the ImmigrationAct, 8 USC Section 1182(a)(9), analien who has been convicted of a crimeinvolving moral turpitude must be excluded,i.e., not allowed to enter the UnitedStates. This provision can apply to a lawfulpermanent resident alien who has leftthe country for a brief trip. Therefore, ifDefendant is convicted in this case andleaves the U.S. for a week to visit a sickrelative, he risks not being allowed toreturn to his wife, child, home and businessin houston.IV.If this Court grants this Motion, the ImmigrationService would still be fully entitledto deport or exclude Mr. -from the country if he engages in any furtherconduct which might render him subjectto those penalties. The only purposeof this Motion is to prevent severe collateralpunishments under federal law from attachingto any sentence which this Courtmay impose under the laws of Texas.v.Defendant would further show that he is22 VOICE for the Defense / February 1987worthy of the relief requested in this Motion,and is prepared to prave same to thisCourt as part of his application for probatton,if convicted of the offense chargedin this case.VI.Defendant has givennotice, as requiredpursuant to 8 CFR Section 241.1, bydelivering a copy of this Motion to PaulB. O'Neill, Director of the Immigrationand Naturalization Service Houston DistrictOffice, as well as to the State ofTexas.WHEREFORE, Defendant prays that ifhe is convicted of this charge, this Courtgrant his Motion and enter its RecommendationAgainst Deportation and Exclusion.Respectfully submitted,Attorney for DefendantCERTIFICATE OF SERVICEI hereby certify that true and correct copiesof the foregoing Motion have beenserved upon the following by deliveringsame:Harris County District Attorney's Office201 Fannin Street, Houston, TexasIXstrict Director,lJ.S. Immigration & N;lturdimtionService2627 Caroline Street, Houston, Texason this day of October, 1984.NO. -THE STATE OF TEXAS ) IN THE DISTRICT COURT OFVS.) HARRIS COUNIY. TBKAS1 - IUDICUL OISTRIC1-TO THE A?TORNEY GENERAL OFTHE UNITED STATES, AND TO THEUS. IMMIGRATION & NATURALI-ZATION SERVICE:Be it remembered that on thisday oftion Service through its District Directorat Houston, and to the State of Texas, atleast five (5) days prior to the hearing onthis Motion.2. That the Defendant is entitled to anddeserving of the Recommendation requested.IT IS THEREFORE ORDERED that theMotion be GRANTED in all respects, andthis Court hereby recommends, pursuantto 8 USC Section 1251(b)(2), that theJudgment and Sentence in this cause notbe used in any manner whatsoever as a basisfor the deportation or exclusion of theDefendant.Entered this - day of -, 1984.JUDGE PRESIDINGMHhlORANDUM IN SUPPORT OF MOTION FORRECO.IIMWDATIOIOV/IOAWSTDEPOR~ATIONANDEXCLUSfONA. An alien may be deported or excluded,in some circumstances, if convicted ofa crime "involving moral turpitude." See,e.g., 8 USC 1182(a)(9) and Section1251(a)(4).B. If Defendant is convicted in this case,this Court has thc authority undcr X IJSCScction 1251(h)(2) to grant a mi~ndatoryRecommendation Against Deportation,which:(1) Would prevent the conviction frombeing used as the basis for deportingDefendant or excluding him from reenteringthe US.(2) Would li~nithe punishment imposedon Defendant to the penalties provided bystate law for this state crime.(3) Would not prevent Defendant'sdeportation or exclusion on any othergrounds.C. The Defendant is charged with recklesslycausing an auto accident in whichanother person suffered serious bodily in-1984, came on to be heard jury. Whether the offensecharged involvesIkfcndant's Motion for a Recom~nendation ''moral turpitodc" for thc purposes of theArainst l>coonati(ln and Exclusion in lhc lmmieration Act is a oucslion of fedcrdabove-style2 and numbered cause. Con- law, Lzales v. ~arder; 207 F.2d 398,sidering the evidence before the Conrt and 400 (9th Cir. 1953), afd, 374 US. 637the arguments of the parties, the Court (1954). Earlier decisions held that amenfindsas follows:tal state of recklessness was not culpableI. That proper and timely notice was enough to involve moral turpitude. See,given to the Immigration and Naturalua- e.g., Marrer of Szegedi, 10 I&N Dec. 28

J .(BIA 1962). However, the most recent INSdecisions hold that at least in some cases,reckless conduct may rise to the level ofmoral turpitude. Matter of Woj&ow, 18I&N Dec. 111 (BIA 1981) [manslaughter];Matter ofMedina, 15 I&N Dec. 611,613(BIA 1976) [aggravated assault with adeadly weapon]. Therefore a conviction inthis case could trigger the deportation orexclusion consequences.D. A "Recommendation" AgainstDeportation by this Court would be bindingon the Immigration Service withrespect to this conviction. See Velez-Lm~to v. INS, 463 F.2d 1305 (D.C. Cir.1972); Rasntussen v. Robinson, 163 F.2d732 (3d Cir. 1947) [exclusion]. It does notprevent deportation or exclusion on anyother basis. See Mutter of Parodi, 17 I&NDec. 608 (BIA 1980); Kesselbrenner &Rosenherg, IMMIORATION LAW &CRIMES, Section 10.3 (Clark BoardmanCo. 1984). If Defendant is, or becomes,subject to those penalties for some otherconduct, the Immigration Service would befree to proceed against him despite thisCourt's recommendation.E. The additional punishments whichDefendant may incur if this Court denieshis Motion are severe:(1) This conviction alone would makehim excludable, i.e., ifhe leaves the US.temporarily he could be refused the rightto return here. 8 USC Section 1182(a)(9).(2) This conviction, plus any other convictionfor a crime of moral turpitude,would make him subject to deportation,even if he was convicted of a Class C misdemeanortheft ten years fromnow. 8 USCSection 1252(a)(4).(3) This conviction alone would likelydelay his opportunity to become a US.citizen for five years. 8 USC Section1427(a)(3) [naturalization requires fiveyears of good moral character]; 8 USCSection 1101(f) [conviction of such anoffense inconsistent with good moralcharacterJ.F. Granting this Motion would ensurethat the punishments resulting from thisprosecution by the State of Texas are lit-ed to the penalties envisioned by StateLaw. It would also help ensure the Defendant'sability to make restitution; if theDefendant is deported to Korea, he willhave no financial means to make restitutionand the State would have no effectivelegal means to enforce such restitution.Respectfully submitted, George, 341 US. 223 (1951). [An alien wouldalso be subiect * to dewaation if he was convictedat any time afler entry of two crimes involv-- tne - moral tumiilude. not arisin~ - out of a sinde -- -- ~ncident, rcgirdicsf uf the sentencc imposeJ.IAtrorne~ forThcrcare few exccplions or waivcrs for aliensx:**$*subject to deportati6nupon these grounds; I donot how of any that would apply to Mr.Appendix IRe conclusion I reachis that if there is a fdFebruary 19, 1985conviction in this case and asentenceof at leastone year is imposed, he will he deportedHon.whether or not thesentenceis probated. He willJudge for the Criminal District Court not be eligible for the privilege of voluntaryfor Harris County, Texasdeparture, under which he could leave the US.301 San Jacinto Street on his own, because the conviction would pre-Houston, Texasventhimfmm establishing "gwd moral charactei'as it is defined under the immigration hws.Re: State vs.8 USC Sec. 1101(9(3). Good moral characteris a prerequisite to receiving voluntary depar-Dear Judze -ture. Therefore, affer a deportation hearing, heAs I limit my practice to immigration and na- would be Iteld in INS cus~dy until the agencytionc~litv law and related fields, the attorncy fnr ~rranged his rcturn flight to his own country;the defendant has asked me to describe to the he would have to arrange for friends to sell hisCourt why it would be important toMr. belongings here and pack his hags for him; hethat he receive deferred adjudication instead of wonld not be able to fish thecurrent academicprobation, assuming that he pleads guilry to the term.charge ngainst him.ficlusion as a consequence of conviction.7he kc~s us erolained to me.A sineleconv~ction - for acrime of moral tur-I have not mct personally with the defcndant, pitudc (except certain misdemeanurs nndhut ondcrst~ml that he has hen i~~divted fur iuvcniic oftenscs) would also nrakc an alicn %x-Credit Card Abuse, a third degree felony; that hiable" from the U.S. 8 USC Sec. 1 l82(a)(9).the ounishment allowed bv the Penal Code That is, Mr. w o u l d not be eligible towonld range from two to ten years imprison- return to this country for the rest of his life,men1 with a fine UD to $5.000: and that Mr. unless he ~nalified for a waiver or exceptionhas no prm criminal record. which at this time appears unavailable. For aI also understand, from looking at a copy of relatively young person, to be permanentlythe visa in his passport, that he was admitted banned from entering any one country may beto the United States in 1983 as an "M-1" stu- considered a fairly serious penalty.dent, which is an imn~igmtion category for studentsat technical institutes and vocationalschools, and that he hopes to obtain a degreehere before returning to his own country.As the Court well knows, the crucial differencebetween deferred adjudication and probationunder Texas law is that the former doesnot entail a conviction. This difference is alsorecoenized under the federal immip.rar~onlaws.and > has an important effect 6r the aliendefendant.An alien already in the unitedstates who isconvicted of a crime"invo1ving mod turpitude"becomes subject to deportation if the crime wascommitted within five years affer his entry andhe is sentenced to a year or more imprisonment-whether or not that sentence is probated. SeeSection 2411a114> of the Immieration &Nation-Section 1%1(a)(4). CreditCard abuse. as it involves an element of fi'audulentconduct, would certainly be considered acrime of moral turpitude. Cf: Jordan v. De-ality Act, 8 ~kP.Other consequences.There are two other consequences of a cnnvictionin this case, whiihdo not depend on thelength of any sentence. As a non-immigrant stu-dent, Mr. n e e d s the permission of INSfor certain matters involving his course ofstudies, such as a transfer from one school toanother. If he has been convicted of a crime,he is less likely to receive that permission, andtherefore his education may be limited. Also,although at this time he is planning to returnto his own country, there is always the possi-hilitv that his nlans mav chanee. If in a fewyears heapplied for permanent residence in theUS.. aconvictionfor this felony would eithermilk; him ineligible, or greatG increase thedifficulty of becoming a resident.Conclusion.It is of course for this Court to decide whatpenalty the Defendant should bear, and the un--continued or1 page 42February 1987 1 VOICE for the Defense 23

Search Warrants ana ~rrest Warrantsby Jade Meeker, assisted by Susan GogganPart IIntroductionThis article is intended to provide a basicguide to and summary of the recent developmentsin the law of search and arrestwanants. The issues discussed herein arisein the defense of all types of state criminalcases. Although the general law ofsearch, arrest, and seizure of evidence providesless defensive material for attorneysthan in times past, successful challengesare still possible. It is my hope that this articlewill enable defense attorneys to usewhatever challenges remain to the best advantageof their clients.The article is divided into three maintopics: search warrants, arrest warrants,and effective challenges to those warrants.In the first two topics, I have discussed thelaw regarding the requirements of warrantsand their accompanying affidavits, executionof warrants, and the implications ofdefects in either the warrants or affidavits.In the appendix, I have included basicchecklists for affidavit requirements.Last, I wish to make clear that this articleis intended to be used only as a sup-Jade Meeker is Research Attorney forJudge Chrrck Miller, Ttxas Corat of C~i~ninu1Appeals. She obtained her B.A. Degreefrwn Trinity University (double degree inMathenlatics and Political Science) in 1980and her J.D. Degree fiwn the Utiiversit).of Texas h s School in 1982. She was arecipient of the Firlbright and Ja~vorskiOutsta~~ding Student Award in 1981.She has been B~iej'ing Attonley for JudgeMiller and an Associate with Haynes andFzrlle~ti~eider of Houston. She hos alsoserved as Assistant City Attorney for theCity of Austin and Staff Allorney for theCity of Austin in the claims departnrentwhere she handled co~it~iiercial arid civillitigation.plemental research tool, and is not intendedto be used as a primary authority. It shouldnot be used in the place of independent researchfor any specific legal question, andshould be considered current only as of thedate of its publication, as is any legal article.The reader should update any issuediscussed herein with relevant new cases.Search WarrantsThe Fourth Amendment to the UnitedStates Constitution provides that:The right of the people to be securein their persons, houses, papers, andeffects, against unreasonable searchesshall not be violated, and no Warrantsshall issue, but upon probablecause, supported by Oath or affiation,and particularly describing theplace to be searched, and thepersonsor things to be seized.Article 1, $9 of the Texas Constitutionstates:The people shall be secure in theirpersons, houses, papers and possessions,from all unreasonable seizuresor searches, and no warrant to searchany place, or to seize any person orthing, shall issue without describingthem as near as may be nor withoutprobable cause supported by oath oraffirmation.The Texas constitutional provision iscoextensive with its counterpart in theUnited States Constitution. Bro~vn v. State,657 S.W.2d 797 (Tex. Cr. App. 1983).Both of these provisions prohibit unreasonablesearches, and the basic test toapply is whether the search was reasonableunder all of the circumstances. Taylor v.State, 421 S.W.2d 403, 406 (Tex. Cr.App. 1967). There is no fixed method todetermine what is a "reasonable" search,and each case must be considered on acase-by-case basis. Id.The concept of "reasonableness" usuallyhas two elements. First, the search mustbe supported by probable cause, i.e., theremust be sufficient information to supportan officer's belief that an item subject toseizure is where the officer is supposed tosearch. Second, the search must be madepursuant to an effectively issued searchwarrant, see Schmerber v. Califor~~ia, 384U.S. 757,86 S.Ct. 1826, 16 L.Ed.2d 908(1966), or conducted under circumstanceswhich dispense with the warrant requirement,such as exigent circumstances, or asearch conducted as an incident to a lawfularrest, see id.Thus, a search may be conducted in oneof two ways. First, the search may beconducted pursuant to a warrant whichconforms to the requirements of these constitutionalprovisions: there must beprobablecause to support the warrant, it mustbe supported by oath or affirmation, andit must describe as near as possible theplace to be searched and the person orthing to be seized. See Commentary, Art.1, $9 (Vernon's 1984). Additional searchwarrant requirements enacted by statuteare set out in Chapter Eighteen of theTexas Code of Criminal Procedure. Seealso Tolentirro 1. State, 638 S.W.2d 499(Tex. Cr. App. 1982).Second, a search may be conductedwithout a warrant. Such a search, however,is considered per se unreasonable,subject to a few well-delineated exceptions.Nastu v. State, 589 S.W.2d 434 (Tex. Cr.App. 1979). In cases concerning acceptablewarrantless searches, the searcheswere found to be reasonable in light of allof the circumstances.Neither of the two constitutional provisionsprovides a remedy if an unreasonablesearch is conducted. Article 38.23,V.A.C.C.P., however, provides that noevidence obtained in violation of the TexasConstitution or laws or the United Statesconstitution or laws shall be admitted intoevidence against the accused in the trial of24 VOICE for the Defense /February 1987

1982). Thus, if the defendant challengesthe truth of the statements contained in anaffidavit, he or she may be entitled to ahearing where evidence not presented inthe affidavit may be developed. See discussion,i~lJSn. In such an instance, the trialcourt is not bound by the four-corners ofthe affidavit.This exception does not apply to challengesbased upon the sufficiency of thefacts set forth as a basis for the warrant.It applies only to challenges based uponpossible intentional misrepresentations offacts set forth in the affidavit.The standard applicable fa ashowing of probable causePrior to the United- States SupremeCourt's decision in Illinois v. Gates, 462US. 213, 103 S.Ct. 2317,76 L.Ed.2d 527(1983), thestandard to beapplied in judgingthe sufficiency of an afficavit basedupon an informer's tip was set forth inAguilar v. Tern, 378 U.S. 108,84 S.Ct.1509, 12 L.Ed.Zd.723 (1964) and explicatedin Spinelli v. United States2 393 US.410,89 S.Ct. 584,21 L.Ed.2d637 (1969).In order to be sufficient, the affidavit hadto reflect the following:1. The underlying facts and circumstancesupon which the affiant hasedhis belief that the information wascredible or his information reliable(the credibility prong); and2. The underlying facts and circumstancesupon which the informantbased his belief that the property orthing sought to be seized was whereit was claimed to be (the specificityprong).The credibility prong focuses on the personsupplying the facts, and the specificityprong focuses on the facts presented.This test was applied rigidly, and if theaffidavit was found lacking in either area,it was held insufficient to support the warrant,and all evidence admitted under thewarrant was rendered inadmissible. SeeStoddard v. State, 475 S.W.2d 744 (Tex.Cr. App. 1972).In Gafes, supra, the United States SupremeCourt held that the two-prong testshould be abandoned, and a "totality of thecircumstances" test used in its stead. Underthe new test, the magistrate should be ableto determine from the affidavit that thereis a fair probability that the contraband orevidence will be found in a particularplace. This finding should be hased uponall of the circumstances set forth in the affidavit,including the credibility of the personssupplying the information and thespecificity of that information. As wasstated prior to Gates, supra, in Taus v.Broivn, 460 U.S. 730, 103 S.Ct. 1535,75L.Ed.2d 502 (1983):"[Probable cause] merely requiresthat the facts available to the officerwould 'warrant a man of reasonablecaution in the belief,'. . .that certainitems may be. . .useful as evidenceof a crime; it does not demand anyshowing that such a belief is corrector more likely true than false.. . ."103 S.Ct. at 1543.The Texas Court of Criminal Appealshas not yet specifically held that the Gatestest applies to search and arrest warrantsunder Texas law. In Hennessey v. State,660 S.W.2d 87 (Tex. Cr. App. 1983), theCourt held that the totality of the circumstancestest set forth in Gates, supra, governsin determining probable cause underthe Fomtlt Amendment of the United StatesConstitution. The Court did not statewhether that test applied under Texas constitutionaland statutory law. Seealso Escov. State, 668 S.W.2d 358 (Tex. Cr. App.1982). InEisenhauer v. State, 678 S.W.2d947 (Tex. Cr. App. 1984), the Court ofCriminal Appeals again avoided a specificdetermination that Gates, supra, governsunder State law. The Court did hold thatGates, supra, applies to warrantlesssearches as well as searches conductedwith warrants. The Court remanded thecase back to the Court of Appeals,however, for a determination of whetherthe officers had violated state law relatingto dlegal searches.In Broivn v. State, supra, a pluralityopinion, the Court stated that the TexasConstitution should not be interpreted differentlythan ihe United States SupremeCourt interprets the federal constitutionwith regard to search and seizure issues.This was, however, only a plurality decision,and a majority of the court has notacoepted this view.Thus, the Court of Criminal Appeals hasnot yet stated with clarity that the Gatestotality of the circumstances test should beapplied to warrants and affidavits understate law. Regardless what test is adopted,however, an affidavit in support of awarrant will have to set forth adequatefactual allegations to support a finding ofprobable cause, and show some basis forthe affiant's belief in or acquisition of thosefacts: it will have to meet both the credibilityand specificity requirements. Gates,supra, does not dispense wlth these requirements;rather, the Supreme Court hasmerely held that they should not be appliedin an overtechnical way. A deficiency inthe evidence supporting one prong may hebalanced by greater specificity in the evidencesupporting the other prong. Moreover,the same evidence may be used toestablish both the credibility and specificityrequirements. If the affidavit adequatelyreflects some showing for each of the requirements,then the affidavit will likelybe found sufficient regardless of which testis applied.It is clear that the Gates standard is lessstringent than the Aguilar-Spinelli twoprongtest. See generally Worzley v. State,695 S.W.2d 664 (Tex. Cr. App.-Dallas1985, no pet.). Until the Court of CriminalAppeals does decide which law shouldapply, prosecutors would be well advisedto see to it that their warrants and affidavitsconform to the stricter Aguilar-Spinelli requirementsrather than gamble that theCourt will decide to adopt the Gates test.By the same token, defense attorneysshould be aware of the lack of a clear rulein this area, and advocate the use of thestricter test.Application of this standardfo affidavitsProbable cause in an affidavit may be establishedwith one of three types of information:information based entirely uponthe personal knowledge of the affiant; informationbased upon a combination ofhearsay from one source and matters withinthe personal knowledge of the affiant;and information hased entirely upon hearsay(an informer's tip).Probable cause based entirely upon thepersonal knowledge of the affiantAn affidavit from a person having personalknowledge of the matters containedin the affidavit is sufficient if it suppliessufficient underlying facts to support probablecause. See Range1 v. Stare, 435 S.W.February 1987 1 VOICE for the Defense 29

2d 143 (Tex. Cr. App. 1969). The credibilityrequirement is met since the personis named and swears to the contents of theaffidavit. See Christopher v. State, 489S.W.2d 575 vex. Cr. App. 1973). Seealso Spinelli, supra. Thus, the affidavitneed only meet the specificity requirementby reflecting sufficient facts to enable themagistrate to conclude that the person orthe item sought may be found at the locationdescribed. Of course, any additionalinformation should be included to ensurethat the affidavit establishes probablecause. At the very least, the affidavitshould reflect:1. The identity of the officer or personsupplying the information;2. The means by which the informationwas obtained, such as by observationor perception;3. The specific information gathered;and4. When and under what conditionsthe information was obtained.Probable cause requiredfor an affidavit based entirely uponhearsay informationAn affidavit may be based upon informationprovided by an informant, wherethe affiant has no personal knowledge ofthe matters related to him or her by the informant.The informants fall into threecategories: proven informants, named citizens,or unnamed persons who may becitizens or first time informants.When the affidavit is based entirely uponhearsay allegations, the basis of the informant'scredibility must be shown, in additionto the specific facts observed or knownby the informant. The former requirementwiU he discussed first, with regard to eachof the three possible types of informants.If the information provided in an affidavithas been disclosed by a proven informantwhose identity is now disclosed,the credibility requirement may be fulfilledby alleging that the informant has giventrue, correct and reliable information in thepast. Wortley, supra. The affidavit neednot allege how many times in the past theinformant has provided the affiant with informationwhich proved to be correct.Cams v. State, 462 S.W.2d 581 (Tex. Cr.App. 1971). See also Curris v. Skate, 519S.W.2d 883 (Tex. Cr. App. 1975). andHegdal v. State, 488 S.W.2d 782 (Tex.Cr. App. 1972).If the informant is a named citizen, thenthe credibility showing is not as strict.-Where a named informant is a privatecitizen whose only contact with the policeis a result of having witnessed a criminalact committed by another, the credibilityand reliability of the information is inherent."Esco, supra at 361 citing Wood v.State, 573 S.W.2d 207 (Tex. Cr. App.1978) and Frazier v. State, 480 S.W.2d375 (Tex. Cr. App. 1972). Thus, no furtherallegations, other than the citizen'sname, need be recited in the affidavit inorder to establish the informant's credibility.If the informant is a named police officer,then further allegations of credibilityneed not he made. Cassanova v. State, 707S.W.2d 708 (Tex. Cr. App.-Houston[14th] 1986, no pet.), at 710, citing UnitedStntes v. Ventresca, supra. See also Gish,supra.If the information bas been disclosed bya first-time informant or an unnamed citizen,such as an anonymous informer, theaffidavit should contain recitations concerningthe informant's credibility, such asaverments that the informant lacks a criminalrecord, has a good reputation in thecommunity for veracity, and is gainfullyemployed. See Wood, supra; Wefherby v.State, 482 S.W.2d 852 (Tex. Cr. App.1972), Adair v. State, 482 S.W.2d 247(Tex. Cr. App. 1972), and Yanfisv. State,476 S.W. 2d24 (Tex. Cr. App. 1972). Amere assertion that the informant wascredible will not he sufficient to meet thefirst reqnirement. Abercrombie v. State,528 S.W.2d 578 (Tex. Cr. App. 1974).One factor which may be used to establishan informer's credibiity, regardless ofthe type of informer, is a statement againstthe informeZs penal interest. For example,if the informer provides information thathe was involved in criminal activity, thenhe has made a statement against his penalinterest, which may be considered as a factorestablishing his credibility. UnitedStates v. Harris, 403 U.S. 573, 91 S.Ct.2075,29 L.Ed.2d 723 (1971), Hennessey,supra, and Abercro~nbie, supra.With regard to the specificity requirement,that the affidavit contain sufficientfacts to support the finding of probablecause, regardless of the typeof informant,the affidavit must set forth sufficient factsand circumstances to support his belief thatthe item sought to he seized is where heclaims it is. See Carmichael v. Sfate, 607S.W.2d 536 (Tex. Cr. App. 1980). Thisinformation may be provided in one of twoways: showing that theinformant has personalknowledge of the laatters asserted,or showing that the informant's tip is hearsayworthy of belief.If the informant has personal knowledgeof the matters related to the affiant, thereneed be no additional showing in order toestablish sufficient facts to meet the secondrequirement. Smith v. State, 496 S.W.2d90 (Tex. Cr. App. 1973). There must be,however, sufficient facts set forth to showhow the informant acquired his personalknowledge, and when the inform&ion wasobtained. Personal knowledge mav be inferredfrom the facts provid& ~bkmnbie,supra. See also Winkles, supra, op. onrehearing, adopting dissent filed on originalsubmission.Information obtained from an informermay also be hearsay. In other words, theaffiant may swear that the informant hasdisclosed some communication made byanother person to the informant. "Hearsayupon-hearsaymay be utilized to showprobable cause as long as the underlyingcircumstances indicate that there is a substantialbasis for crediting the hearsay ateach level." Hennessy, supra, at 91, citingEvans v. State, 530 S.W.2d 932 (Tex.Cr. App. 1975); United States v. McCoy,478 F.2d 176 (10th Cir. 1973), cert. denied,414 U.S. 828,94 S.Ct. 53,38 L.Ed.2d 62 (1974); and Jones v. United States,362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d697 (1960). Thus, as long as the affidavitsets forth sufficient facts to believe that theinformation told to the informant was reliable,then that information may be considered.In sum, if hearsay-upon-hearsay is usedto establish probable cause, then the affidavitshould set forth the statements relatedby the declarant to the informant, facts indicatingthe relationship between the declarantand the informant, and recitationsas to why the statements should be believed.These requirements must be met inaddition to those regarding the credibilityof the informant, and those regarding thesufficiency of the facts to support the conclusionthat probable cause exists to findthe desired item in the specified place.mnritrued or, page 3130 VOICE for the Defense / February 1987

DECISIONSREPORTEDITOR:Calhrrinr Grccnr BurnellASSOCIATE EDITORS:Bill Clasp).\Valler C. PrentireR.K. \VcarerC O U R T OF C R I M I N A L A P P E A L S[NOTE: Only 10 opinions were handed down duringthe five weeks from December 23 to January 21.1Joe E. MILLS, No. 1094-83 -- Felony Theft Conviction Affirmed-- On D's PDR: Opinion by Judge Clinton; Judges Teague andMiller Dissent; 12/23/86STATUTORY CONSTRUCTION -- SPECIFIC-GENERAL: SECURING DOCUMENT BYDECEPTION NOT A SPECIFIC STATUTE CONTROLLING THEFT BY DECEPTION:D was convicted of 2nd degree felony theft [Sec. 31.03(d)(5)(6)1;t/c assessed punishment at 16 years.TCA rejects argument that Sec. 32.46 "Securing Execution of aDocument by Deception" is the more specific statute and shouldcontrol over the general theft statute. Intersection betweenstatutes occurs with use of "deception". In theft case it is oneof the circumstances surrounding D's conduct which operates torender otherwise apparent consent "ineffective". Under 32.46 theforbidden conduct is deception. Sec. 32.46 was intended toproscribe conduct that is deceptive, not acquisitive. Incontrast, focus of theft statute is on acquisitive conduct, anddeception is one of several methods whereby the acquisition maybe had. TCA also notes that in some respects securing executionof a document by deception is broader proscription that theft:(1) "deception" is not specifically deFined under Chapter 32,whereas it has special definition under Chapteer 31 [Theft]; (2)February 1987 / VOICEfor the Definse SDR-1

specific intent to defraud or harm under Sec. 32.45 is broaderthat specific "intent to deprive" in theft, (3) while in theftthat intent is directed toward the "owner" of the property appropriated.in Sec. 32.46 that deception may be with intent to harm"any person".CASE IMPACTED: Although TCA says "we have no occasionto do so here" majority suggests that Tawfik [643//1271should be overruled on theory that it is a certain typeof deceptive conduct that is proscribed, not acquisitiveconduct. Tawfik involved sale of fake Egyptian scaraband held that prosecution should have proceeded underSec. 32.22 for misdemeanor offense of criminalsimulation, rather than felony theft.Jerrv Dorsev JOHNSON, No. 67,417 --- Murder Conviction Affirmed-- On Direct Appeal: Judge McCormick; Judge Clinton concurringin result, Judge Teague dissenting, Judge Miller dissenting inpart: 12/23/86WARRANTLESS ARREST -- SUFFICIENT FACTS TO ESTABLISH PROBABLECAUSE TO ARREST: At time of D's arrest, officers knew from ownknowledge or reliable information from credible source thefollowing facts surrounding early morning murder of sleepingapartment resident:1. Attacker was black male2. no sign of forced entry3. one of master keys found in ha1 lway of apartmentunlocked the unit's front door4. assailant would be blood spattered [i-e., blood onwalls, doors, TV]5. D arrived as murder scene shortly af er police andfurnished odd explanation for his presence k i . saidhe was maintenance man and that when he called apartmentanswering servfce that morning they suggested he go toapartment because there had been stabbing; officerstestified that D seemed nervous and they thought it wasodd for him to appear since 2 apartment security guardswere present]6. D was black maleSDR-2 VOICE for the Defense / February 1987

1982). Thus, if the defendant challengesthe truth of the statements contained in anaffidavit, he or she may be entitled to ahearing where evidence not presented inthe affidavit may be developed. See discussion,infa. In such an instance, the trialcourt is not bound by the four-corners ofthe affidavit.This exception does not apply to challengesbased upon the sufficiency of thefacts set forth as a basis for the warrant.It applies only to challenges based uponpossible intentional misrepresentations offacts set forth in the affidavit.The standard applicable to asho~ving of probable causePrior to the United. States SupremeCourt's decision in Illinois v. Gates, 462U.S. 213, 103 S.Ct. 2317,76 L.Ed.2d 527(1983), the standard to be applied in judgingthe sufficiency of an afficavit basedupon an informer's tip was set forth inAguilar v. Texas, 378 U.S. 108, 84 S.Ct.1509, 12 L.Ed.Zd.723 (1964) and explicatedin Spinelli v. United States, 393 US.410,89 S.Ct. 584,21 L.Ed.Zd637 (1969).In order to be sufficient, the affidavit hadto reflect the following:I. TIIC onderlying t'acls :~nd circumstancesu~on which the ;~ffia~~t b;~sedhis belief that the information wascredible or his information reliable(the credibility prong); and2. The underlying facts and circumstancesupon which the informantbased his belief that the property orthing sought to be seized was whereit was claimed to be (the specificitypmng).The credibility prong focuses on the personsupplying the facts, and the specificityprong focuses on the facts presented.This test was applied rigidly, and if theaffidavit was found lacking in either area,it was held insufficient to support the warrant,and all evidence admitted under thewarrant was rendered inadmissible. SeeStoddard v. State, 475 S.W.2d 744 (Tex.Cr. App. 1972).In Gates, supra, the United States SupremeCourt held that the two-prong testshould be abandoned, and a "totality of thecircumstances" test used in its stead. Underthe new test, the magistrate should be ableto determine from the affidavit that thereis a fair probability that the contraband 01evidence will be found in a particula~place. This finding should be based uponall of the circumstances set forth in the affidavit,includimg the credibility of the personssupplying the information and thespecificity of that information. As wasstated prior to Gates, supra, in Texas v.Brown, 460 US. 730, 103 S.Ct. 1535,75L.Ed.2d 502 (1983):"[Probable cause] merely requiresthat the facts available to the officerwould 'warrant a man of reasonablecaution in the belief,'. . .that certainitems may be. . .useful as evidenceof a crime; it does not demand anyshowing that such a belief is corrector more likely true than false.. . ."state law. Regardless what test is adopted,however, an affidavit in support of awarrant will have to set forth adequatefactual allegations to support a finding ofprobable cause, and show some basis fortheaffiant's belief in or acquisition of thosefacts: it will have to meet both the credibilityand specificity requirements. Gates,supra, does not dispense with these requirements;rather, the Supreme Court hasmerely held that they should not he appliedIn an overtechnical way. A deficiency inthe evidence supporting one prong may bebalanced by greater specificity in the evidencesupporting the other prong. Moreover,the same evidence may be used toestablish both the credibility and specificityrequirements. If the affidavit adequatelyreflects some showing for each of the requirements,then the affidavit will likely103 S.Ct. at 1543.be found sufficient regardless of which testThe Texas Court of Criminal ADU~~~Sis applied.&.has not yet specifically held that the Gates It is clear that the Gates standard is lesstest applies to search and arrest warrants stringent than the Agrrilnr-Spinelli twounderTexas law. In Hermessq v. State, prong test. See generally Wortley v. State,660 S.W.2d 87 (Tex. Cr. App. 1983), the 695 S.W.2d 664 (Tex. Cr. App.-DallasCourt held that the totality of the circum- 1985, no pet.). Until the Court of Crimistancestest set forthin Gates, supra, gov- nal Appeals does decide which law shoulderns in determining probable cause unde~ apply, prosecutors would be well advisedthe Fourth AmetuIntent of the United States to see to it that their warrants and affidavitsConstitution. The Court did not state conform to the stricter Agrrilar-Spinelli rewhetherthat test applied under Texas con- quirements rather than gamble that thestitutional and statutory law. See also Esco Court will decide to adopt the Gates test.v. State, 668 S.W.2d 358 (Tex. Cr. App. By the same token, defense attorneys1982). InEisenhauer v. State, 678 S.W.2d should be aware of the lack of a clear rule947 (Tex. Cr. App. 1984), the Court of in this area, and advocate the use of theCriminal Appeals again avoided a specific stricter test.determination that Gates, supra, governsunder State law. The Court did hold that Appliratiorr of this standardGates, supra, applies to ivarrantlessto affidavitssearcl~es as well as searches conductedwith warrants. The Court remanded the Probable cause in an affidavit may be escaseback to the Court of Appeals, tablished with one of three types of inforhowever,for a determination of whether mation: information based entirely uponthe officers had violated state law relating the personal knowledge of the affiant; intoillegal searches.formation based upon a combination ofIn Browrt v. State, supra, a plurality hearsay from one source and matters withopinion,the Court stated that the Texas in the personal knowledge of the affiant;Constitution should not be interpreted dif- and information based entirely upon hearferentlythan the United States Supreme say (an informer's tip).Court interprets the federal constitutionwith regard to search and seizure issues. Probable cause based entirely upon theThis was, however, only a plurality deci- personal knowledge of the affiantsion, and a majority of the court has notaccepted this view.An affidavit from a person having per-Thus, the Court of Criminal Appeals has sonal knowledge of the matters containednot yet stated with clarity that the Gates in the affidavit is sufficient if it suppliestotality of the circumstances test should be sufficient underlying facts to support probappliedto warrants and affidavits under able cause. See Range1 v. State, 435 S.W.February 1987 1 VOICE for the Defense 29

2d 143 (Tex. Cr. App. 1969). The credibilityrequirement is met since the personis named and swears to the contents of theaffidavit. See Christopher v. State, 489S.W.2d 575 (Tex. Cr. App. 1973). Seealso Spinelli, supra. Thus, the affidavitneed only meet the specificity requirementby reflecting sufficient facts to enable themagistrate to conclude that the person orthe item sought may be found at the locationdescribed. Of course, any additionalinformation should be included to ensurethat the affidavit establishes probablecause. At the very least, the affidavitshould reflect:I. The identity of the officer or personsupplying the information;2. The means by which the informationwas obtained, such as by observationor perception;3. The specific information gathered;and4. When and under what conditionsthe information was obtained.Probable cause requiredfor an affidavit based entirely uponhearsay informationAn affidavit may be based upon informationprovided by an informant, wherethe affiant has no personal knowledge ofthe matters related to him or her by the informant.The informants fall into threecategories: proven infom~ants, named citizens,or unnamed persons who may becitizens or first time informants.When the affidavit is based entirely uponhearsay allegations, the basis of the informant'scredibility must he shown, in additionto the specific facts observed or knownby the informant. The former requirementwill be discussed first, with regard to eachof the three possible types of informants.If the information provided in an affidavithas been disclosed by a proven informantwhose identity is now disclosed,the credibility requirement may be fulfilledby alleging that the informant bas giventrue, correct and reliable information in thepast. Wortley, supla. The affidavit neednot allege how many times in the past theinformant has provided the affiant with informationwhich proved to be correct.Casas v. State, 462 S.W.2d 58 1 (Tex. Cr.App. 1971). See a~Bo Curtis v. State, 519S.W.2d 883 (Tex. Cr. App. 1975), andHegdal v. State, 488 S.W.2d 782 (Tex.Cr. App. 1972).If the informant is a named citizen, thenthe credibility showing is not as strict.'Where a named informant is a privatecitizen whose only contact with the policeis a result of having witnessed a criminalact committed by another, the credibilityand reliability of the information is inherent."Esco, supra at 361 citing Wood v.State, 573 S.W.2d 207 (Tex. Cr. App.1978) and Frazier v. State, 480 S.W.2d375 (Tex. Cr. App. 1972). Thus, no furtherallegations, other than the citizen'sname, need be recited in the affidavit inorder to establish the informant's credibility.If the informant is a named police officer,then further allegations of credibilityneed not be made. Cassnnova v. State, 707S.W.2d 708 (Tex. Cr. App.-Houston[14th] 1986, no pet.), at 710, citing UnitedStates v. Ventresca, supra. See also Gish,supra.If the information has been disclosed bya first-time informant or an unnamed citizen,such as an anonymous informer, theaffidavit should contain recitations concerningthe informant's credibility, such asaverments that the informant lacks a criminalrecord, has a good reputation in thecommunity for veracity, and is gainfullyemployed. See Wood, supra; Wetherby v.State, 482 S.W.2d 852 (Tex. Cr. App.1972), Adair v. State, 482 S.W.2d 247(Tex. Cr. App. 1972), and Yawtis 11. State,476 S.W. 2d 24 (Tex. Cr. App. 1972). Amere assertion that the informant wascredible will not be sufficient to meet thefirst requirement. Abercro~ribie v. State,528 S.W.2d 578 (Tex. Cr. App. 1974).One factor which may he used to establishan informer's credibility, regardless ofthe type of informer, is a statement againstthe informer's penal interest. For example,if the informer provides information thathe was involved in criminal activity, thenhe has made a statement against his penalinterest, which may be considered as a factorestablishing his credihility. UnitedStates v. Harris, 403 US. 573, 91 S.Ct.2075,29 L.Ed.2d 723 (1971), Hennessey,supra, and Abercrombie, supra.With regard to the specificity requirement,that the affidavit contain sufficientfacts to support the finding of probablecause, regardless of the type of informant,the affidavit must set forth sufficient factsand circumstances to support his belief thatthe item sought to be seized is where heclaims it is. See Carmichael v. State, 607S.W.2d 536 (Tex. Cr. App. 1980). Thisinformation may be provided in one of twoways: showing that the informant haspersonalknowledge of the matters asserted,or showing that the informant's tip is hearsayworthy of belief.If the informant has personal knowledgeof the matters related to the affiant, thereneed be no additional showing in order toestablish sufficient facts to meet the secondrequirement. Sn~ith v. State, 496 S.W.2d90 (Tex. Cr. App. 1973). There must be,however, sufficient facts set forth to showhow the informant acquired his personalknowledge, and when the information wasobtained. Personal knowledge may he inferredfrom the facts provided. Abercronzbie,supra. See also Winkles, supra, op. onrehearing, adopting dissent filed on originalsubmission.Information obtained from an informermay also be hearsay. In other words, theaffiant may swear that the informant hasdisclosed some communication made byanother person to the informant. "Hearsayupon-hearsaymay be utilized to showprobable cause as long as the underlyingcircumstances indicate that there is a substantialbasis for crediting the hearsay ateach level." Hennessy, supra, at 91, citingEvans v. State, 530 S.W.2d932 (Tex.Cr. App. 1975); United States v. McCoy,478 F.2d 176 (10th Cir. 1973), cert. denied,414 US. 828,94 S.Ct. 53,38 L.Ed.2d 62 (1974); and Jones v. United States,362 US. 257, 80 S.Ct. 725, 4 L.Ed.2d697 (1960). Thus, as long as the affidavitsets forth sufficient facts to believe that theinformation told to the informant was reliable,then that information may he considered.In sum, if hearsay-upon-hearsay is usedto establish probable cause, then the affidavitshould set forth the statements relatedby the declarant to the informant, facts indicatingthe relationship between the declarantand the informant, and recitationsas to why the statements should be helieved.These requirements must be met inaddition to those regarding the credibilityof the informant, and those regarding thesufficiencv of the facts to suooort . the conclusionthat probable cause exists to findthe desired item in the specified place.contimed on pnxe 3130 VOICE for the Defense / February 1987

EDITOR: Calherine Creme RurnettASSOCIATE EDITORS:Bill Gkp)\Vdlcr C. PrrntirrR.K. WearerC O U R T OF C R I M I N A L A P P E A L S[NOTE: Only 10 opinions were handed down duringthe five weeks from December 23 to January 21.1Joe E. MILLS, No. 1094-83 -- Felony Theft Conviction Affirmed-- On 0's PDR: Opinion by Judge Clinton; Judges Teague andMiller Dissent; 12/23/86STATUTORY CONSTRUCTION -- SPECIFIC-GENERAL: SECURING DOCUMENT BYDECEPTION NOT A SPECIFIC STATUTE CONTROLLING THEFT BY DECEPTION:D was convicted of 2nd degree felony theft CSec. 31.03(d)(5)(8)1:t/c assessed punishment at 16 years.TCA rejects argument that Sec. 32.46 "Securing Execution of aDocument by Deception" is the more specific statute and shouldcontrol over the general theft statute. Intersection betweenstatutes occurs with use of "deception". In theft case it fs oneof the circumstances surrounding D's conduct which operates torender otherwise apparent consent "ineffective". Under 32.46 theforbidden conduct deception. Sec. 32.46 was intended toproscribe conduct that is deceptive, not acquisitive. Incontrast, focus of theft statute is on acquisitive conduct, anddeception is one of several methods whereby the acquisition maybe had. TCA also notes that in some respects securing executionof a document by deception is broader proscription that theft:(1) "deception" is not specifically defined under Chapter 32,whereas it has special definition under Chapteer 31 [Theft]; (2)February 1987 1 VOICEfor the Defense SDR-1

specific intent to defraud or harm under Sec. 32.46 is broadert.hat specific "intent to deprive" in theft. (3) while in theftthat intent is directed toward the "owner" of the property appropriated,in Sec. 32.46 that deception may be with intent to harm"any personft.CASE IMPACTED: Although TCA says "we have no occasionto do so here" majority suggests that Tawfik [643//127]should be overruled on theory that it is a certain typeof deceptive conduct that is proscribed, not acquisitiveconduct. Tawfik involved sale of fake Egyptian scaraband held that prosecution should have proceeded underSec. 32.22 for misdemeanor offense of criminalsimulation, rather than felony theft.Jerry Dorsev JOHNSON, No. 67,417 -- Murder Conviction Affirmed-- On Direct Appeal: Judge McCormick; Judge Clinton concurringin result, Judge Teague dissenting, Judge Miller dissenting inpart; 12/23/86WARRANTLESS ARREST -- SUFFICIENT FACTS TO ESTABLISH PROBABLECAUSE TO ARREST: At time of D's arrest, officers knew from ownknowledge or reliable information from credible source thefollowing facts surrounding early morning murder of sleepingapartment resident:1. Attacker was black male2. no sign of forced entry3. one of master keys found in ha1 lway of apartmentunlocked the unit's front door4. assailant would be blood spattered [f-e.. blood onwalls, doors, TVI5. D arrived as murder scene shortly af er police andfurnished odd explanation for his presence Ci-e.. saidhe was maintenance man and that when he called apartmentanswering service that mornlng they suggested he go toapartment because there had been stabbing; officerstestified that D seemed nervous and they thought it wasodd for him to appear since 2 apartment security guardswere present]6. D was black maleYSDR-2 VOICE for the Defense /February 1987

7. D was employed by and resident of apartment complex8. D appeared to have blood on his white pants9. D admitted ownership of master keys found in hallwayof apartment.%TCA noted that D "I iteral ly thrust himself under the s'cru~'?ny L.the investigating officers at the scene of the crime" [Usserx,651//7671 and that then presence of D's keys inside apartment andhis subsequent admission of ownership supplied direct linkbetween D and offense. Because arrest based on probable causeTCA did not need to address "exigent circumstances" on constituti ona l grounds.WARRANTLESS ARREST -- PERMISSIBLE UNDER CHAPTER 14 V.A.C.C.P.:D also challenged arrest on state statutory grounds. Undisputedthat officers made no effort to secure arrest warrant. Policeacknowledged D had not commited felony or offense against publicpeace in their presence and did not flee or appear to be about toescape. 'Only section of Chapter 14 that could be applicable isArt. 14.03 ["suspicious places and circumstances"l. cautioningthat 14.03 should be applied to authorize warrantless arrests inonly limited situations, TCA applied it here. Key factors werethat (1) D's presence was not contrived by law enforcementofficials to circumvent procurement of warrant, and (2) D'sarrest. did not occur in a place where he could claim a reasonableexpectation of privacy.GUILTY PLEAS -- WHAT HAPPENS WHEN T/C REFUSES TO SUPPRESS ITEMSAND D SUBSEQUENTLY STIPULATES TO EVIDENCE WHICH CONTAINED FRUITSOF THE ERROR? TCA holds "if the guilty plea or plea of nolocontendere is supported by evidence as required by Article 1.15tainted evidence, then any erroneous ruling on an appealablepretail motion does not vitiate the conviction."NOTE: TCA dlstfnguishes recent case of Rodriguez, (Nos.67,744 and 67,745 decided 4/17/86) where TCA held thatif the ground of error is insufficiency of the evidenceto support the plea then the judicial confession will- not be disregarded. Here case involved disposition ofcase after erroneous pre-trial ruling so Rodriquginapplicable.D sought to suppress items seized from his apartment. Theremaining untainted evidence included examining trial testimonyof eye witness, seizure of D's pants, D's admission of ownershipof keys. TCA found that untainted stipulated evidence, absentjudicial confession and plea, embraced every essential element.February 1987 1 VOICE for the Defense SDR-3

Ex parte James Harvey HAWKINS, No. 69.670 -- Writ ReliefGranted -- Judge Campbell; 12/23/86INDICTMENTS -- SEXUAL ABUSE OF CHILD INDICTMENT DEFECTIVE: TCAfound following indictment defective for failing to stateoffense:"did unlawfully, knowingly and intentionally engaqe - - indeviate sexual intercourse with G- s_ H_- vhereinafter called complainant, a child vounoer than 17years and not then the spouse of the [8pplrcant], Qy-- contact -- between - the anus - of the complainant and a dildoheld by [applicantl, with the intent to arouse andgratify the sexual desire of the [applicant]..."Offense occurred June 13. 1981. At that time term "deviatesexual intercourse" was defined under Sec. 21.01(1) as "anycontact between any part of the genitals of one person and themouth or anus of another." [NOTE: Effective 9/1/81 definitionwas broadened to include objects.]EX parte Don Lionel BROOKS, No. 69,727 -- Writ Relief Granted:Per Curiam Opinion, 12/23/86AFFIRMATIVE FINDINGS -- SIGNIFICANT DISCUSSION OF WHAT DOES NOTCONSTITUTE AFFIRMATIVE FINDING IN JUDGMENT: Indictment alleged Dcaused death "by shooting with a gun". Jury verdict found"guilty of murder by then and there intentionally or knowinglycausing the death of an individual ... by shooting with a gun."After assessement of punishment and pronouncement of sentence t/cdid not enter affirmative finding.A gun is not a per se deadly weapon. Under Farm C702//6021 t/ccould have made affirmative finding when he was trier of fact atpunishment phase. He didn't.In granting relief, TCA made 2 important observations:1. Affirmative finding is not a recitation of theoffense in the judgment with the words "deadly weapon","firearm used", or other similar phrases added tooffense for which D is convicted. Nor is affirmativefinding made and entered when judgment reflects verdictof jury and verdict refers to a weapon.SDR-4 VOICE for the Defense /February 1987

2. Although jury's verdict as trier of fact in certaincircumstances may constitute an afffirmative findingbeing made [m, 693//391], it is necessary affirmativefinding to be entered separately and specifically injudgment of the court by the t/c.Ex parte Bernardo EURESTE. No. 69.473 -- Original Writgismissed: Judge Onion; Dissenting Opinion by Judge Clinton;12/23/86CONTEMPT -- BOND; NEED FOR APPLICANT TO BE UNDER RESTRAINT:There is no remedy or right of appeal from order of contempt;thus, there can be no valid appeal bond. Here TCA had issuedwrit then district court judge granted "bond" -- t/c waswithout authority to do so either before the filing of theoriginal habeas corpus action in TCA or after TCA's issuance ofwrit. Proceedings were dismissed because D was not underrestraint.NOTE: One may be "in custody" for habeas corpuspurposes even though he is out on bail or personal bond.However, that rule does not apply to an obviouslyinvalid bond.Ex-parte Lyndel Martin Stephenson, No. 69.671 -- Writ ReliefGranted: Judge Onion; 1/7/87INVOLUNTARY GUILTY PLEA -- INEFFECTIVE ASSISTANCE OF COUNSEL;IMPROPER ADVICE ON PAROLE IMPLIEDLY AGREED TO BY PARTIES: Facts:D's trial attorney stipulated he gave D wrong advice when he toldD to accept 40 year plea bargain as D would be elfgible forparole in 5 years; D's attorney stipulated he did not know Dwould still be required to serve one-third sentence flat due tonature of offense [aggravated sexual assault]. D alleged hewould not have entered into plea bargain and pleaded guiltyexcept for the erroneous advice. D.A. testified that 5's trialattorney said D was concerned about having to do "1/3 flat" andasked to waive any affirmative finding. D.A. did so -- he didnot think about nature of offense having impact and did not thlnkD's trial counsel did so either.m: Although there was not express agreement that good timecredit would be considered in determination of initial paroleeligibility, facts in case show implied agreement between partiesto avoid the one-third flat time requirement. To extent thatFebruary 1987 / VOICE for the Deferre SDR-5

parole eligibility was element of plea bargain and D received badadvice from attorney, plea involuntary.Billy Jack BAGGETT, Nos. 634-85, 635-85 and 636-85 --Possession of Improperly Labelled Sea Trout and RedfishConvictions Affirmed; Refusal to Allow Inspection of FishConviction Reversed -- Judge W.C. Davis; 1/7/87CAPTION CHALLENGES NO LONGER ENTERTAINED ON APPEAL -- Relyingon ex parte Crisp C661 S.W.2d 9441 D challenged House Bill 1000.67th Leg., p. 374, ch. 153, eff. 9/1/81 which amended severalsections of the Parks and Wildlife Code because caption failed togive public fair notice of its contents. Article 111, Section 35of the Texas Constitution was amended 11/4/86 to provide:"(c) A law, including a law enacted before theeffective date of this subsection, may not be held voidon the basis on an insufficient title."Based on Amendment, TCA finds it no longer has power to declarean act of the legislature unconstitutional due to insufficiencyof its caption.PRACTICE NOTE: Prosecutors have recently been usingCrlsp to claim Speedy Trial Act unconstitutional due tocaption defect. In light of Amendment, this is nolonger a valid attack.SEARCH AND SEIZURE -- SEC. 47.037 OF PARKS AND WILDLIFE CODEFACIALLY UNCONSTITUTIONAL: In Neslonev 1711 S.W.2d 6361 TCAfound Sec. 47.037 to be facial violation of 4th Amendment andArt. I, Sec. 9 of Texas Constitution because it allowswarrantless searches without any procedural safeguards whichWould limit to particular types of building or certain times ofday. Here State sought to have TCA limit Nesloney to its factsCi.e., unconstitutional only when applied to residences], TCAdeclined. Statute unconstitutional on its face, not as applied.Earl Gene TOMLIN, No. 1064-85 -- Burglary Conviction Affirmed-- On D's PDR: Judge Miller; Concurring Opinion by Judge Onion;Judges Clinton and Teague concur in results; 1/7/87ENHANCEMENTS -- FINALITY PROVED THROUGH COMBINATION OF D'STESTIMONY AND PEN PACKET: State alleged 4 prior convictions forenhancement. D claimed St failed to prove second prior offenseSDR-6 VOICE for the Defense / Febmaly 1987

was committed after first prior offense was final. Facts: Duringcross-examination of D at guilt-innocence, D answeredaffirmatively to question from D.A. regarding 2nd prior conviction,"That was something that you did after you got out ofprison the first time?" D gave similar answer for third offense.At punishment St offered pen packets for all 4 priors.: Finality may be proved through D's own testimony. Dtestified to finality. Both D's testimony and pen packets stateoffense commited, date of conviction, and punishment -- those 3similarities gave jury enough evidence to determine that D'stestimony and pen packets referred to same offenses.NOTE: Proper terminology is enhancement paragraph. notenhancement count.PROCEDURAL NOTE: Even after the 9/1/86 adoption of theRules of Appellate Procedure, "Ground for review" isstill proper nomenclature for PDR. See Rule 202(d)(4).Ex parte Pamela Board Dan-?. No. 69,427 -- Art. 11.06 WritRelief Denied -- Judge McCormick; Judge Miller concurs in part;Concurring and Dissenting Opinion by Judge Campbell; Dissentins0pin.ion by Judge Clinton, joined by Judges Teague and Duncan;1 /7/87CRIMINAL CONTEMPT -- NO RIGHT TO COUNSEL IN DIRECT CONTEMPTCASES: Facts surroundinq criminal contempt action spranq fromfamily court matter; D allegedly assaulted court personnel asbal iff was removing her from cour"troom on t/c's order that shenot be allowed to re-enter until she secured counsel. Pluralityviews as direct contempt because committed or occurred inpresence of court. When there is direct comtempt, t/c mayconduct summary proceeding in which no notice or heaving in usualsense and D has no attorney. D was sentenced to 30 days.CRIMINAL CONTEMPT -- SHERIFF MAY AWARD "GOOD TI ME" CREDIT:County Sheriff is authorized to give "good time" credit to oneserving sentence for criminal contempt.Mario MARQUEZ, No. 69,466 -- Capital Murder ConvictionAffirmed: Judge W.C. Davis, Judge Clinton concurs in results.Judge Teauge dissents; 1/14/87February 1987 1 VOICE for the Defense SDR-7

CAPITAL MURDER SPECIAL ISSUES -- ACTIONS OF THIRD PARTYCANNOT BE CONSIDERED AS PROVOCATION FOR CAPITAL MURDER OFANOTHER: D argued he was entitled to Special Issue Three onprovocation. Facts showed D killed and sexually assaulted hisestranged wife and her younger sister. This trial was for murderof sister. D claimed provocation came from fact he wife may haveheen unfaithful to him, that witnesses said he looked "furious",and that victims' mother testified D told her he killed them "toyet even" or for "vengance". Citing Hernandez C643 s.w.2D 3971TCA held that under Article 37.071(b)(3), actions of 3rd partycannot be considered as provocation for capital murder ofanother-.JURY SELECTION -- FAIR-CROSS SECTION -- TEXAS CONSITUTION WILLNOT GIVE BROADER PROTECTION THAN FEDERAL: TCA adopted thefederal law [Lockhart v.McCree, I06 S.Ct. 17581 as test in faircross-section cases. Proper analysis under Texas Constitution istest of Cockhart.UNITED S T A T E S S U P R E M E C O U R TrSince the beginning of the new term, the Supreme Court hashanded down two signficant criminal law decisions.1Co l or-ado v . ConnelLy, No. 85-660, Delivered 12/10/86 --Opinion by Chief Justice Rehnquist; Concurring and DissentingOpinion by Justice Stevens; Dissenting Opinion by JusticeBrennan, joined by Justice MarshallCONFESSIONS -- VOLUNTARINESS -- INSkNITY OR MENTAL ILLNESS --NECESSITY OF COERCIVE POLICE ACTIVITY: To find a confession not"voluntary" under the Due Process Clause of the 14th Amendment,there must be coercive police activity. Facts: D approacheduniformed officer and, without any prompting, said he hadmurdered someone and wanted to talk about it. Officerimmediately gave Mlranda warnings. D said he understood warningsbut still wanted to talk. Officer was confused and asked Dseveral quest ions -- D denied he had been drinking, denied hehad been taking drugs, and said he had been a patient in severalmental hos~itals. When officer told D he was under no obligationto say anything, D replied it was "all right" and that his consciencehad been bothering him. In officer's opinion D fullyunderstood nature of hls acts. Homicide detective then advised.D said he had come from Boston to confess to murder of young girlin Denver in November. 1982. After search of police recordsrevealed body having been found. D detailed his story and tookSDR-8 VOICEfor the Defe~lse / February 1987

officers to exact location of murder. During interview withpublic defender the next day D appeared disoriented and said"voices" had told him to come to Denver. D was sent to statehospital and originally found incompetent. Psychiatrist employedby hospital testified D was suffering from chronic schizophreniaand was in psychotic state at least on the day before heconfessed. D's response to "command hallucinations" interferedwith his ability to make free and rational choices but did notimpair his cognitive abilities. T/C found D's mental statevitiated his attempted waiver of right to counsel and privilegeagainst self incrimination; Colorado Supreme Court agreed.Held: Due process violations relative to the voluntariness ofconfessions require coercive police conduct Ci-e., officers learnduring interrogation that suspect has history of mental problemsand exploit this weakness through coercive tactics]. If D'sposition adopted, would expand previous line of "voluntariness"cases into far-ranging requirement that courts "must divine a D'smotivation for speaking or acting as he did even thouqh there beno cla.im that governmental conduct coerced his decision."Although a statement rendered by suspect in D's condition mightbe proved quite unreliable, that is matter to be governed byevidentiary rules of the forum and not Due Process clause.MIRANDA WAIVER MAY BE PROVED ONLY BY PREPONDERANCE OF EVIDENCE:When D seeks to suppress statement he claims obtained inviolation of Miranda. State need only prove waiver bypreponderance of evidence.GRIFFITH V. KENTUCKY, Nos. 85-5221 and 85-5731; Decided 1/13/87;Opinion by Justice Blackmum; Concurring Opinion by Judge Pawell;Dissenting Opinion by Chief Justice Rehnquist; Dissenting Opinionby Justice White, joined by Justices Rehnquist and O'ConnerRETROACTIVITY -- BATSON V. KENTUCKY -- ABOLITION OF "CLEARBREAK" RULE: A new rule for conduct of criminal prosecutionsmust be applied retroactively to all cases, state or federal,pending on direct review, or not yet final. There is no'exception for cases in which the rule is a "clear break" from thepast -- similarly situated defendants should be treated thesame. 'Here Batson, dealing with claim of prima facie racialdiscrimination based on prosecutor's use of peremptory challengesto strike members of D's race from venire, was retroactivelyappl ied.PRACTICE GUIDE: Good reason to seek PDR or Petition forCert. on those issues you think are "hot" or know arecurrently pending before TCA or Supreme Court.February 1987 I VOICE for the Defense SDR-9

Joe Louis ARRIETA, No. 02-85-202-CR, WICHITA COUNTY,SURGLARY OF A BUILDING, Reversed, 10/22/86PROBATION REVOCATION: The D pled guilty and was sentenced to twoyears, said sentence being probated for two years ending onOctober 27, 1983. Five months prior to the expiration of theprobation period, the State filed a motion to revoke probation.When the motion was filed, the D had absconded supervision. Awarrant was issued and the D was arrested in early 1985. OnFebruary 12, 1985, a hearing was held on the first motion torevoke probation. Instead of revoking probation, the judgeextended it until February 12, 1986. During this extended period,the State again filed a motion to revoke the probation allegingnew probation violations. In July, 1985, the court heard the newmotion to revoke and, after the proceedings, revoked the D'sprobation and sentenced him to two years in T.D.C.The C/A, interpreting TEX. CODE CRIM. PROC. ANN. art. 42.12 (6)(a) held that the statute did not permit the court to modify oralter probation after the probation period has expired. Theinitial motion to revoke did not toll the probation period; itcontinues to run and can expire. The court could have revoked theprobation on the basis of the first motion to revoke (based upona timely filed motion to revoke and the issuance of a capiasduring the period of probation), but having chosen not to revokethe probation, the court was powerless to alter the terms andconditions of probation after the probationary period expiresand, specifically, the trial court could not extend the probationperiod after the initial probationary period had expired. Thetrial court's act in attempting to extend the probationary periodsixteen months after the initial probation period had expired wasvoid.George Thomas TWEEDY, No. 05-86-35-CR, DALLAS COUNTY,BRIBERY, Affirmed, 11/25/86INDICTMENT: The Appellant was charged with bribery, the indictmentalleging that he knowingly conferred a benefit onanother as consideration for a duty imposed by law on a publicservant. In this case, the law imposing a the duty was aresolution adopted by a city council. The D alleged that theindictment failed to allege an offense since a resolution, unlikean ordinance, is not a law as contemplated by the Penal Code. TheC/A, citing TEX. PENAL CODE ANN. sec. 1.07 (a) (20), held that acity resolution was a "rule authorized by and lawfully adopted,under a statute". The statute authorizing the rule here was TEX.REV. CIV. STAT. ANN. arts. 1011, 1015 & 1175 (the "Home RuleCity" statutes).SDR-10 VOICE for the Defense / February 1987

Vernon Lee ROSE, No. 05-85-1136-CR, DALLAS COUNTY,XGGRAVATED ROBBERY, Affirmed on Rehearing en banc, 12/1/86JURY CHARGE: At trial the court charged the jury pursuant to TEX.CODE CRIM. PROC. ANN. art. 37.07 (4) (e) (the parole charge). Oninitial submission, a panel of the C/A held that the statutefiolated the Separation of Powers Doctrine of Article 11, sec. 1,~f the Texas Constitution. On rehearing, the Court held that the:harge was constitutional and did not violate the doctrine.Further, the Court held that the charge was not inherentlyconfusing or contradictory.Comment: This case is long and confusing. Seven justices joinedthe lead opinion with one justice concurring in the result only.This opinion is convoluted, disjointed and far to long to attemptto excerpt here (77 pages in all!). The remaining five justicesfiled four dissenting opinions, each with a different justificationfor their votes. This case involved a challenge to thecharge which was not made at trial, i.e., there was no objectionto the charge. The various dissents will give counsel a fairlygood idea of how to object to the charge and preserve the issuespending the Court of Criminal Appeals final determination as tothe issues which will be raised concerning this statute.David Edward HIGBIE, No. 05-86-188-CR, DALLAS COUNTY,DRIVING WHILE INTOXICATED, Reversed and Remanded, 12/10/86SEARCH & SEIZURE: The police established a road block at 1:45a.m. on a road leading from several bars. The officers testifiedthat the purpose of the road block was to check driver'slicenses. They specifically denied that the road block had anyother purpose. The C/A noted that the road block was manned byofficers from the "Driving While Intoxicated Squad", and that itwas established to stop cars coming from the area of bars whichwere at that time beginning to close down, and ended shortlyafter the bars were closed. The C/A held that despite theofficers assertions to the contrary, when the intent of the stopwas measured against all of the facts and circumstancessurrounding the stop, "it becomes apparent that the roadblock wasthere for the specific purpose of catching drunk drivers". TheC/A then analyzed the stop under the guidelines set down inWebb v. State, 695 S.W.2d 676 (Tex. App. - Dallas, 1985, no PDR),and found the stop constitutionaly infirm.Comment; What is interesting about this opinion is that the C/Alooked to the actual facts and circumstances surrounding the roadblock and found that they rebutted the officers express testimonythat the road block had no purpose except to check for driver'slicenses. This appellate fact-finding is laudable, but unlikelyto survive subsequent appellate review by the Court of CriminalFebruary 1987 1 VOICE for the Defense SDR-11

Appeals. In the meantime, however, counsel would be well advisedto waive this case at trial judges for the proposition that evenwhen an officer testifies that there was only one reason for aroad block, namely: driver's license checks, the appellate courtswill look to all of the circumstances surrounding the stop andwill not be put off by an officer's blatant lie about the purposeof the stops. Enjoy it while it is still available to cite.Jack HOWELL, et. al., No. 06-86-38-CR, UPSHAR COUNTY,COMPULSORY SCHOOL ATTENDANCE, Affirmed, 12/9/86CONSTITUTIONALITY: The Howell's refused to send their children toschool, intending instead to educate them at home themselves.They were convicted of violating the compulsory school attendancelaw, TEX. EDUC. CODE. ANN. sec. 4.25 (1986). The Howell's,representing themselves both at trial and on appeal, contendingthat the statute violated their constitutional rights ascontained in the First and fourteenth Amendments to the UnitedStates Constitution, Article I, secs. 6 & 29 of the TexasConstitution and "the word of God".The C/A held that the Howell's failed to establish how thestatute affected their religious beliefs or how it imposed asubstantial burden on their exercise of their religion. The C/Adid not hold that the statute would always be upheld against sucha challenge, only that the D's failed to meet their burden ofproof at trial. As to reliance on the word of God, the C/A heldthat it the courts of the Stat of Texas enforce the laws of Texasand the United States and cannot exercise jurisdiction overpurely ecclesiastical matters.Comment: While the C/A appears to suggest that it is unlikelythat any constitutional challenge to the compulsory schoolattendance law would be sustained, it did base its ruling almostentirely upon the D's failure to introduce sufficient evidence attrial to overcome the presumption of constitutionality which allstatutes enjoy. They treated this as a case of failure of proof,rather than a case based upon a fundamentally flawed legaltheory leaving open the possibility that a properly presentedcase could carry the day.SDR-12 VOICE for the Defense / Februav 1987

Search and Arrest WarrantsIndependent corroboraliorr offacts to correct a deficiency iri eitherthe credibilig of the infornw or thespecificio of that which he relatesIf the affidavit does not adequately setforth the underlying circumstances fromwhich the affiant concluded that the informerwas credible, or if it fails to give.sufficiently specific information, such adeficiency may be corrected by independentcorroboration by the affiant. Wood,supra, at 214, citing Stoddard, supra. Insuch cases, the affidavit should contain theinformant's information and the basis of hisknowledge, and explain how the affiant'sindependent investigation corroborates significantdetails of the informant's tip. SeeCummins, supra, and Pohnco v. State, 475S.W.2d 763 (Tex. Cr. App. 1972). Rememberthat this corroboration is requiredonly when the informant's credibility or thereliability of the informant's information isnot adequately established in the affidavit.Agtiilar v. State, 444 S.W.2d 935 (Tex.Cr. App. 1969), and Cassanova, supra.In Stoddard, supra, the informant wasalleged only to be "credible and reliable."Since the mere recitation that the informeris credible is not sufficient to meet the fnsttest, the Court looked to the other facts tosee whether there was any corroborationwhich would establish that the informerwas credible. The rest of the affidavitprovided no other corroboration, so the affidavitwas invalid and the evidence introducedtherefrom was inadmissible.Affidvit recitations concerning whenthe events were observedNot only must the facts submitted to themagistrate be sufficient to show that theitem sought may be found at the specifiedlocation, but the affidavit must also showthat the item may be found at that locationat the time the warrant issues. Schmidt,supra, at 421, citing Peltier, supra, Gish,supra, and Heredia, supra. See also Andradav. State, 695 S.W.2d 230 (Tex. Cr.App.-Corpus Christi 1985, no pet.), at234, citing Sherlockv. State, 632 S.W.2d604 (Tex. Cr. App. 1982). Thus, "[tlhefacts attested to must be so closely relatedto the time of the issuance of the warrantso as to justify a finding of probable causeat the time." Heredia, supra at 835.False statements or rnisrepresentatiortsmade in arc affidavitFalse statements or misrepresentationsfound in an affidavitIf a search warrant affidavit is found tocontain statements which are erroneous,false, intentionally misrepresented, ormade with reckless disregard for the truth,the search warrant may be declared invalidand all evidence stemming from the searchinadmissible. This is the one situationwhere the trial court will not he bound bythe four-corners test.If the affidavit is shown to contain intentionalmisrepresentations or statementsmade in reckless disregard for the truth,the affidavit may be invalidated. Franks 1).Delaware, supra. See also Cla)lton v.State, 652 S.W.2d 950 (Tex. Cr. App.1983); Brooks, supra; Ellerbee v. State,631 S.W.2d 480 (Tex. Cr. App. 1981);andJuarezv. State, 586 S.W.2d513 (Tex.Cr. App. 1979) (affidavit contamed statementthat defendant had purchased heroinwhere declarant did not have personalknowledge of purchase and later recantedstatements). See also Spencer v. State, 672S.W.2d 451 (Tex. Cr. App. 1984) (affidavitstated that affiant based his informationon informant's sworn statement, whereinformant never gave the affiant the information).Once the affidavit is shown to containfalse statements:"If the affidavit was sworn to withknowledge that the information inthe affidavit is false , or with recklessdisregard of the truth of thatinformation, those portions of the affidavitwhich are false are to beexcised from the affidavit, and theremaining content is to be examinedfor sufficiency to support issuance ofthe warrant."Sl~errcer, supra at 454, citing Franks,supra, Ra~nsey v. State, 579 S.W.2d 920(Tex. Cr. App. 1979), and Hen~ressey,supra.If an examination of the affidavit fromwhich the false information has been exciseddoes not reveal an adequate basis fora finding of probable cause, then the affidavitmust be declared invalid. If, however,there is sufficient information tosupport probable cause contained in theaffidavit without the false information,then the affidavit is acceptable.The defendant's required showingfor a preliminary hearingFranks, supra, held that when the defendantmakes a preliminary showing that theaffiant has intentionally, knowingly, orwith reckless disregard of the truth includedfalse statements in the affidavit,then the defendant is entitled to a hearingto determine whether the affidavit is valid.According to the Franks decision, thatpreliminary showing should include:I. Allegations of deliberate falsehoodsor misrepresentations made inreckless disregard for the truth containedin the affidavit;2. Specific references to those allegedlyfalse statements;3. Accompanied by an offer of proofincluding affidavits, sworn statementsor other reliable statements ofwitnesses showing that the statementsare false, or a reasonableexplanation of the absence of suchstatements.See Brooks, supra.If the defendant fails to make the precedingshowing, then he is not entitled to thehearing. Id. Moreover, if the State comesback with evidence showing that the affidavitis sufficient even when the objectionablematter is stricken, then a hearing isnot required. Franks, supra.Unintentional misrepresentatiorrsIf the misrepresentations are made ingood faith, then the defendant may notchallenge the sufficiency of the affidavit.See Franks, supra. If subsequent informationreveals that statements contained in theaffidavit are erroneous, then the affidavitwill not be rendered invalid, Archer v.State, 607 S.W.2d 539 (Tex. Cr. App.1980), cert. denied, 452 US. 908, 101S.Ct. 3037, 69 L.Ed.2d 410 (1981), aslong as there were sufficient facts to supportthe finding of probable cause. See discussion,supra.If the defendant makes the requiredshowing discussed supra, a prosecutormay be required to disclose the name ofa confidential informant in a search warrantaffidavit if the testimony of that informantis necessary to establish that theaffidavit contains an intentional misrepre-February 1987 / VOICE for the Defense 31

sentation or statement made in reckless dis- every stage of the proceedings, except atregard for the truth. If such a sitnation the in camera showing, where no counselarises, reference should be made to Rule or parties shall be present.508 of the Texas Rules of Criminal Evidence,which provides that the State has Special affidavit requirements for itemsa privilege to refuse to disclose the identityof a person who has furnished informasoughtunder Art. 18.02(10)tion relating to commission of an offense.Rule 508@) states that the privilege mayArticle 18.02(10), supra, permits a searchwarrant to be issued for items constitutingnot apply where the information from an evidence of an offense or constituting eviinformer is relied upon to establish the le- dence tending to show that aparticular pergalityof the means by which evidence was son committed an offense. Article 18.01obtained and the judge is not satisfied that (c), V.A.C.C.P., states that a warrant maythe informer was reliable or credible. This not be issued under Art. 18.02(10), supra,exception will apply chiefly incases where unless the sworn affidavit sets forth suffithesearch was conducted without a warrantor incident to a warrantless arrest,cient facts to establish probable cause that:since the four-corners rule would prevent 1. a specific offense has been comthetrial or appellate court from going he- mitted;hind the affidavit to judge its adequacy. 2. the specifically described prop-The rule may be read, however, topre- erty or items that are to be searchedvent the privilege from applying when the for or seized constitute evidence ofdefendant alleges that the affidav~t contains that offense or evidence that a parintentionalmisrepresentations or state- ticular person committed that ofmentsmade with reckless disregard for the fense; andtruth. Since the four-corners rule does not 3. the property or items constitutingapply in such cases, see Franks, supra, and evidence to he searched for or seizedJlcarez, supra, the trial court, and there- are located at or on the particularfore the appellate court, will be permittedto consider evidence not apparent from theperson, place or thing to besearched.four-corners of theaffidavit in order to de- The third requirement is the same for anytermine whether the defendant's allegations search warrant, but this section providesare correct.for two additional requirements if the itemsIf the State is called upon to reveal the fall within subsection (10) of Art. 18.02:identity of a confidential informant, Rule there must be probable cause to believe that508 provides for the following procedure. an offense has been committedand that theFirst, the State must claim the privilege, item sought is evidence of that offense.since it may he waived by voluntary dis- Since subsection (10) is predicated on theclosure of the informer's identity. If the existenceof an offense, theaffidavit mustjudge finds that the identity of the informer be insome way tied to commission of thatw~ll assist in his determination regarding offense. Also, since subsection (10) authedefendant's allegations of intentional thorizes seizure of items that are not inmisrepresentation,then the judge shall give herently illegal, see discussion snpra, andthe State an opportunity to show in camera simply constitute evidence of a crime,facts relevant to whether the informant greater specificity in the descriptions ofcan, in fact, supply relevant information. those items is required. Failure to meet anyRule 508(c)(2). The showing will ordinar- of the three requirements in the affidavitily be by affidavit unless the judge finds will render it invalid and the evidence obthataffidavits are not sufficient to resolve tained thereunder inadmissible. Malder,the matter. If the judge finds that the in- supra.former may he able to give relevant testimony,and if the State refuses to disclose Execution of athe informer's identity, then the judge maySearch Warrantdismiss the charges against the defendant.Evidence io the judge on this Who may issue a ivarranfmatter shall be sealed and preserved forappellate review. The contents shall not Article 18.01(a), supra, requiresfhat theotherwise bemade public. All counsel and warrant be issued by a magistrate. Articleparties shall be permitted to be present at 2.09, V.A.C.C.P., sets forth who are tobe considered magistrates. See thefollowingportion of this Article concerning arrestwarrants. The magistrate issuing thewarrant must be properly serving as a magistrate,or the warrant issued will be invalid.See French v. Stafe, 572 S.W.2d934 (Tex. Cr. App. 1977) (where searchwarrant was issued by one who had nottaken the oath of office, the warrant wasvoid and the evidence seized thereunderwas inadmissible).If the defendant wants to challenge theauthority of the magistrate to issue a warrant,the defendant must bring a direct actionthrough a quo warranto proceeding.Archer, supra. at 544, citing Saenz v.Lnckey, 522 S.W.2d 237 (Tex. Cr. App.-Corpus Christi 1975, writ refd n.r.e.); andKeen v. State, 626 S.W.2d 309 (Tex. Cr.App. 1981).When the warraat must be executedArticle 18.06, V.A.C.C.P., states thata serach warrant must be executed withoutdelay, within three days from the time ofits issuance, unless the magistrate directsthat it he executed in a shorter time. Article18.07, V.A.C.C.P., states that the timeallowed for execution shall be three days,exclusive of the day of its issuance and theday of its execution. Thus, the executingofficer has five days to exeeute the warrant.For example, if the warrant is issuedon June 1, it could be executed on June 1,June 2, June 3, June 4, or June 5. If thewarrant is not executed within the propertimelimits, it is invalid. S~wnson v. State,18 S.W.2d 1082 (Tex. Cr. App. 1929) andHolman v. Sf@, 14 S.W.2d 949 vex. Cr.App. 1929).Who may execute the warrantArticle 18.06, V.A.C.C.P., requiresthat a peace officer execute the warrant.Article 2.12, V.A.C.C.P., states who arepeace officers. The officers must, however,be operating within their properjurisdiction. For instance, a state officermay serve a search warrant anywhere inthe state, a county officer may serve asearch warrant anywhere in the county,Gilberf v. Stafe, 493 S.W.2d 783 (Tex. Cr.App. 1973), and an officer of an incorporatedcity may serve a search warrant onlywithin that incorporated area. Reynolds v.State, 506 S.W.2d 864 (Tex. Cr. App.1974).32 VOICE for the Defense /February 1987

Vernon Lee ROSE, No. 05-85-1136-CR, DALLAS COUNTY,AGGRAVATED ROBBERY, Affirmed on Rehearing en banc, 12/1/86JURY CHARGE: At trial the court charged the jury pursuant to TEX.CODE CRIM. PROC. ANN. art. 37.07 (4) (e) (the parole charge). Oninitial submission, a panel of the C/A held that the statuteviolated the Separation of Powers Doctrine of Article 11, sec. 1,of the Texas Constitution. On rehearing, the Court held that thecharge was constitutional and did not violate the doctrine.Further, the Court held that the charge was not inherentlyconfusing or contradictory.Comment: This case is long and confusing. Seven justices joinedthe lead opinion with one justice concurring in the result only.This opinion is convoluted, disjointed and far to long to attemptto excerpt here (77 pages in all!). The remaining five justicesfiled four dissenting opinions, each with a different justificationfor their votes. This case involved a challenge to thecharge which was not made at trial, i.e., there was no objectionto the charge. The various dissents will give counsel a fairlygood idea of how to object to the charge and preserve the issuespending the Court of Criminal Appeals final determination as tothe issues which will be raised concerning this statute.David Edward HIGBIE, No. 05-86-188-CR, DALLAS COUNTY,DRIVING WHILE INTOXICATED, Reversed and Remanded, 12/10/86SEARCH 5 SEIZURE: The police established a road block at 1:45a.m. on a road leading from several bars. The officers testifiedthat the purpose of the road block was to check driver'slicenses. They specifically denied that the road block had anyother purpose. Tha C/A noted that the road block was manned byofficers from the "Driving While Intoxicated Squad", and that itwas established to stop cars coming from the area of bars whichwere at that time beginning to close down, and ended shortlyafter the bars were closed. The C/A held that despite theofficers assertions to the contrary, when the intent of the stopwas measured against all of the facts and circumstancessurrounding the stop, "it becomes apparent that the roadblock wasthere for the specific purpose of catching drunk drivers". TheC/A then analyzed the stop under the guidelines set down inWebb v. State, 695 S.W.2d 676 (Tex. App. - Dallas, 1985, no PDR),and found the stop constitutionaly infirm.Comment: What is interesting about this opinion is that the C/Alooked to the actual facts and circumstances surrounding the roadblock and found that they rebutted the officers express testimonythat the road block had no purpose except to check for driver'slicenses. This appellate fact-finding is laudable, but unlikelyto survive subsequent appellate review by the Court of CriminalFebruary 1987 / VOICE for the Defense SDR-11

Appeals. In the meantime, however, counsel would be well advisedto waive this case at trial judges for the proposition that evenwhen an officer testifies that there was only one reason for aroad block, namely: driver's license checks, the appellate courtswill look to all of the circumstances surrounding the stop andwill not be put off by an officer's blatant lie about the purposeOf the stops. Enjoy it while it is still available to cite.Jack HOWELL, et. al., No. 06-86-38-CR, UPSHAR COUNTY,COMPULSORY SCHOOL ATTENDANCE, Affirmed, 12/9/86CONSTITUTIONALITY: The Howell's refused to send their children toschool, intending instead to educate them at home themselves.They were convicted of violating the compulsory school attendancelaw, TEX. EDUC. CODE. ANN. sec. 4.25 (1986). The Howell's,representing themselves both at trial and on appeal, contendingthat the statute violated their constitutional rights ascontained in the First and fourteenth Amendments to the UnitedStates Constitution, Article I, secs. 6 & 29 of the TexasConstitution and "the word of God".The C/A held that the Howell's failed to establish how thestatute affected their religious beliefs or how it imposed asubstantial burden on their exercise of their religion. The C/Adid not hold that the statute would always be upheld against sucha challenge, only that the D's failed to meet their burden ofproof at trial. As to reliance on the word of God, the C/A heldthat it the courts of the Stat of Texas enforce the laws of Texasand the United States and cannot exercise jurisdiction overpurely ecclesiastical matters.Comment: While the C/A appears to suggest that it is unlikelythat any constitutional challenge to the compulsory schoolattendance law would be sustained, it did base its ruling almostentirely upon the D's failure to introduce sufficient evidence attrial to overcome the presumption of constitutionality which allstatutes enjoy. They treated this as a case of failure of proof,rather than a case based upon a fundamentally flawed legaltheory leaving open the possibility that a properly presentedcase could carry the day.SDR-12 VOICE for the Defense /February 1987

Search and Arrest WarrantsIndependent corroboration offacts to correct a deficiency in eitherthe credibility of the infomer or thespecificity of that which he relatesIf the affidavit does not adequately setforth the underlying circumstances fromwhich the affiant concluded that the informerwas credible, or if it fails to givesufficiently specific information, such adeficiency may be corrected by independentcorroboration by the affiant. Wood,supra, at 214, citing Stoddard, supra. Insuch cases, the affidavit should contain theinformant's information and the basis of hisknowledge, and explain how the affiant'sindependent investigation corroboiates significantdetails of the informant's tip. SeeCu~nmins, supra, and Polanco v. Store, 475S.W.2d 763 (Tex. Cr. App. 1972). Rememberthat this corroboration is requiredonly when the informant's credibility or thereliability of the informant's information isnot adequately established in the affidavit.Aguilar v. State, 444 S.W.2d 935 (Tex.Cr. App. 1969), and Cassanova. supra.In Stoddard, snpra, the informant wasalleged only to he "credible and reliable."Since the mere recitation that the informeris credible is not sufficient to meet the firsttest, the Court looked to the other facts tosee whether there was any corroborationwhich would establish that the informerwas credible. The rest of the affidavitprovided no other corroboration, so the affidavitwas invalid and the evidence introducedtherefrom was inadmissible.Affiavit recitations concerning ~vhenthe events were observedNot only must the facts submitted to themagistrate he sufficient to show that theitem sought may be found at the specifiedlocation, but the affidavit must also showthat the item may be found at that locationat the time the warrant issues. Schmidt,supra, at 421, citing Peltier, supra, Gish,snpra, and Heredia, supra. See also Andradav. State, 695 S.W.2d 230 (Tex. Cr.App.-Corpus Christi 1985, no pet.), at234, citing Sherlock v. State, 632 S.W.2d604 (Tex. Cr. App. 1982). Thus, "[tlhefacts attested to must be so closely relatedto the time of the issuance of the warrantso as to justify a finding ofprobable causeat the time." Heredia, supra at 835.False statements or misrepresentationsmade in an affidavitFalse statements or misrepresentationsfound in an affidavitIf a search warrant affidavit is found tocontain statements which are erroneous,false, intentionally misrepresented, ormade with reckless disregard for the tmth,the search warrant may be declared invalidand all evidence stemming from the searchinadmissible. This is the one situationwhere the trial court will not be bound bythe four-corners test.If the affidavit is shown to contain intentionalmisrepresentations or statementsmade in reckless disregard for the truth,the affidavit may be invalidated. Franks v.Delaware, supra. See also Clayton v.State, 652 S.W.2d 950 (Tex. Cr. App.1983); Brooks, snpra; Ellerbee v. State,631 S.W.2d 480 (Tex. Cr. App. 1981);and Jnarez v. State, 586 S.W.2d 513 (Tex.Cr. App. 1979) (affidavit contained statementthat defendant had purchased heroinwhere declarant did not have personalknowledge of purchase and later recantedstatements). See also Spencer v. State, 672S.W.2d 451 (Tex. Cr. App. 1984) (affidavitstated that affiant based his informationon informant's sworn statement, whereinformant never gave the affiant the information).Once the affidavit is shown to containfalse statements:"If the affidavit was sworn to withknowledge that the information inthe affidavit is false , or with recklessdisregard of the truth of thatinformation, thoseportions of the affidavitwhich are false are to beexcised from the affidavit, and theremaining content is to be examinedfor sufficiency to support issuance ofthe warrant."Spencer, supra at 454, citing Fronks,snpra, Ranrsey v. State, 579 S.W.2d 920(Tex. Cr. App. 1979), and Hennessey,supra.If an examination of the affidavit fromwhich the false information has been exciseddoes not reveal an adequate basis fora finding of probable cause, then the affidavitmust be declared invalid. If, however,there is sufficient information tosupport probable cause contained in theaffidavit without the false information,then the affidavit is acceptable.The defendant's required showingfor a preliminary hearingFranks, supra, held that when the defendantmakes a preliminary showing that theaffiant has intentionally, knowingly, orwith reckless disregard of the truth includedfalse statements in the affidavit,then the defendant is entitled to a hearingto determine whether the affidavit is valid.According to the Franks decision, thatpreliminary showing should include:1. Allegations of deliberate falsehoodsor misrepresentations made inreckless disregard for the truth containedin the affidavit;2. Specific references to those allegedlyfalse statements;3. Accompanied by an offer of proofincluding affidavits, sworn statementsor other reliable statements ofwitnesses showing that the statementsare false, or a reasonableexplanation of the absence of suchstatements.See Brooks, snpra.If the defendant fails to make the precedingshowing, then he is not entitled to thehearing. Id. Moreover, if the State comesback with evidence showing that the affidavitis sufficient even when the objectionablematter is stricken, then a hearing isnot required. Franks, supra.If the misrepresentations are made ingood faith, then the defendant may notchallenge the sufficiency of the affidavit.See Franks, supra. If subsequent informationreveals that statements contained in theaffidavit are erroneous, then the affidavitwill not be rendered invalid, Archer v.State, 607 S.W.2d 539 (Tex. Cr. App.1980), cert. denfed, 452 US. 908, 101S.Ct. 3037, 69 L.Ed.2d 410 (19811, aslong as there were sufficient facts to supportthe finding of probable cause. See discussion,supra.Znfor~ner's identityIf the defendant makes the requiredshowing discussed sripra, a prosecutormay be required to disclose the name ofa confidential informant in a search warrantaffidavit if the testimony of that informantis necessary to establish that theaffidavit contains an intentional misrepre-February 1987 1 VOICE for the Defense 31

sentation or statement made in reckless disregardfor the truth. If such a situationarises, reference should he made to Rule508 of the Texas Rules of Criminal Evidence,which provides that the State hasa privilege to refuse to disclose the identityof a person who has furnished informationrelating to commission of an offense.Rule 508(b) states that the privilege maynot apply where the information from aninformer is relied upon to establish the legalityof the means by which evidence wasobtained and the judge is not satisfied thatthe informer was reliable or credible. Thisexception will apply chiefly in cases wherethe search was conducted without a warrantor incident to a warrantless arrest,since the four-corners rule would preventthe trial or appellate court from going behindthe affidavit to judge its adequacy.The rule may be read, however, to preventthe privilege from applying when thedefendant alleges that the affidavit containsintentional misrepresentations or statementsmade with reckless disregard for thetruth. Since the fwr-corners rule does notapply in such cases, see Franks, supra, andJuarez, supra, the trial court, and thereforethe appellate court, will he permittedto consider evidence not apparent from thefour-corners of the affidavit in order to determinewhether the defendant's allegationsare correct.If the State is called upon to reveal theidentity of a confidential informant, Rule508 provides for the following procedure.First, the State must claim the privilege,since it may be waived by voluntary disclosureof the znfmmer's identity. If thejudge finds that the identity of the informerwill assist in his determination regardingthe defendant's allegations of intentionalmisrepresentation, then the judge shall givethe State an opportunity to show in camerafacts relevant to whether the informantcan, in fact, supply relevant information.Rule 508(c)(2). The showing will ordinarilybe by affidavit unless the judge findsthat affidavits are not sufficient to resolvethe matter. If the judge finds that the informermay be able to give relevant testimony,and if the State refuses to disclosethe informer's identity, then the judge maydismiss the charges against the defendant.Evidence presented to the judge on thismatter shall be sealed and preserved forappellate review. The contents shall nototherwise be made public. Allcounsel andparties shall he permitted to he present at32 VOICE for the Defense /February 1987every stage of the proceedings, except atthe in camera showing, where no counselor parties shall be present,Special affidavit requirements for itemssought under Art. 18.02(10)Article 18.02(10), supra, permits a searchwarrant to be issued for items constitutingevidence of an offense or constituting evideucctending to show that ic particular personcommittcd an offense. Article 18.01(c), V.A.C.C.P., states that a warrantmaynot he issuedunder An. 18.02(10), supra,unless the sworn affidavit sets forth sufficientfacts to establish probable cause that:1. a specific offense has been committed;2. the specifically described propertyor items that are to he searchedfor or seized constitute evidence ofthat offense or evidence that a particularperson committed that offense;and3. the property or items constitutingevidence to be searched fur or seizedare located at or on the particularperson, place or thing to be searched.The third requirement is the same for anysearch warrant, hut this section providesfor two additional requirements if the itemsfall within subsection (10) of Art. 18.02:there must be probable cause to believe thatan offense has been committed and that theitem sought is evidence of that offense.Since subsection (10) is predicated on theexistence of an offense, the affidavit mustbe in some way tied to commission of thatoffense. Also, since subsection (10) authorizesseizure of items that are not inherentlyillegal, see discussion supra, andsimply constitute evidence of a crime,greater specificity in the descriptions ofthose items is required. Failure to meet anyof the three requirements in the affidavitwill render it invalid and the evidenceobtamedthereunder inadmissible. Mulder,supra.Execution of aSearch WarrantWho may issue a warrantArticle 18.01(a), supra, requires that thewarrant beissued by amagistrate. Article2.09, V.A.C.C.P., sets forth who are tobe considered magistrates. See the followingportion of this Article concerning arrestwarrants. The magistrate issuing thewarrant must be properly serving as a magistrate,or the warrant issued will be invalid.See French v. State, 572 S.W.2d934 (Tex. Cr. App. 1977) (where searchwarrant was issued by one wha had nottaken the oath of office, the warrant wasvoid and the evidence seized thereundwwas inadmissible).If thc dcfcndanl wants to challcnec theauthority of the magistrate to issue a warrant,the defendant must bring a direct actionthrough a quo warranto proceeding.Archer, supra, at 544, citing Saenz v.Lackey, 522 S.W.2d237 (Tex. Cr. App.-Corpus Christi 1975, writ rePdn.r.e.); andKeen v. State, 626 S.W.2d 309 (Tex. Cr.App. 1981).When the warrant mast be executedArticle 18.06, V.A.C.C.P., states thata serach warrant must be executed withoutdelay, within three days from the time ofits issuance, unless the magistrate directsthat it he executed in a shorter time. Article18.07, V.A.C.C.P., states that the timeallowed for execution shall be three days,exclusive of the day of its issuance and theday of its execution. Thus, the executingofficer has five days to execute the warrant.For example, if the warrant is issuedon June 1, it could be executed on June 1,June 2, June 3, June 4, or June 5. If thewarrant is not executed within the propertimelimits, it is invalid. Swanson v. Stafe,18 S.W.2d 1082 (Tex. Cr. App. 1929)andHolmam v. State, 14 S.W.2d 949 flex. Cr.App. 1929).Who may execute the warrantArticle 18.06, V.A.C.C.P., requiresthat a peace officer execute the warrant.Article 2.12, V.A.C.C.P., states who arepeace officers. The officers must, however,he operating within their properjurisdiction. For instance, a state officermay serve a search warrant anywhere inthe state, a county officer may serve asearch warrant anywhere in the county,Gilbert v. State, 493 S.W.2d 783 (Tex. Cr.App. 1973), and an officer of an incorporatedcity may serve a search warrant onlywithin that incorporated area. Reynolds v.Sate, 506 S.W.2d 864 (Tex. Cr. App.1974).-

Evidence: Clarity and VitalityAs often as not we need to make proofof a duplicate, not the original. The soucesbelow will assist you.This article refers to specific documents,such as death certificates and wills. Onedocument may more commonly appear ina criminal trial, another in a civil trial. Buteach can appear in any trial.With the codification of both criminaland civil rules of evidence, the merger ofcriminal and civil jurisdiction in intermediateappellate courts occupied by judgeswith chiefly civil backgrounds, and theProof of Duplicatesby Geoffrey A. FitgGeraldlikelihood that readers of this journal practiceboth criminal and civil trial law, articlesaddressed exclusively to criminalevidence rules will become increasingly infrequent.This column will include civilrules to the fullest extent possible.Mr. FitzGeralds ofice is in Temple. Hepractices in Travis, Bell and other centralTexas counties. He is board certified bothin Criminal Law and in Civil Trial Law.7% fall he teaches the Advanced Crin~inalProcedure Course at Baylor in Waco.admissibilityTEX. R. EV. 1003EX. R. CRIM. EV. 1003[Repealed: TEx. REV. CIV. STATS. ANN. art. 3731blancient documentsancient documents compiled before 1890 and destroyed ordamaged in certain months of 1874, 1876 and 1980: two pagesof statute on itEX. REV. ClV. STATS. ANN. Art. 3729 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851elements of proof 35 Am Jur POF 147-208identity of lost or destroyed 1 Am Jur POF 555-8originals and copies of county records before 1882TEX. REV. CN. STATS. ANN. Art. 3727 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851transcribed records of county created out of a territory oranother coun6, certified copy admissibleTEx. REV. CIV. STATS. ANN. Art. 3728 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851any writingcopies of any writing are admissibleTEX. REV. CIV. STATS. ANN. Art. 3731c [repealed as tocivil actions, 1979; repealed as to criminal actions, 19851authentication1 POFZd 285, s18best evidencelist of document types 3 R. Ray, TBXAS LAW OF EVIDENCECIVIL AND CRIMINAL $1561TEX. R. EV. 1002foundation for admission 35 POF2d 147, $$2,20-23,25,26,29, 32business recordsadmissible without proof of loss of originalTEX. REV. CIV. STATS. ANN. Art. 3731b [repealed as tocivil actions, 1979; repealed as to criminal actions, 19851certified copycomputer business recordselements of proof 35 Am Jur POF 147-208confessionkey; Criminal Law 577(8)convictionDWI conviction packet used as evidence as a certified copyand admissible to prove conviction if copy given to opponent15 days before trial TEx. CODE CRIM. PROC. Art. 38.33expunction TEX. CODE CRIM. PROC. Art. 55.02copies of records maintained in public officesancient documents, filed with a judge or alcalde before 1837,are admissible by copy certified by officer now holding theoriginalTEX REV Crv. STATS. ANN. Art. 3725 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851certified copies of county clerk records admitted without proof,if authenticity of record has not been contested within the lastten years, provided the party gives three days notice to otherparty; when a party files an affidavit that an original of a writinghas been lost, a certified copy is admissible; if the landFebruary 1987 1 VOICE for the Defense 37

the subject of suit is within the county, a party need not accountfor the originals but may file a list of records to beoffered, ten days before trial, giving volume and page, filinga copy of the list with the county clerk, subject to objectionby the other side three days before trialTEX. REV. CN. STATS. ANN. Art. 3726 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851copies are admissibleTEx. REV. Crv. STATS. ANN. Ait. 3720 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851in suits by the State against its own officers or agents overmoney, Comptroller account records are prima facie evidenceand certified copies are admissible; but if the defendant byverified pleading denies execution of an instrument, productionof the original is required.TEX. REV. CN. STATS. ANN. Art. 3724 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851Secretary of State and other named offices shall furnish copiesof their records to those requesting them; certified copies ofrecords are admissible.TEx. REV. Crv. STATS. ANN. Art 3722 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851corporate recordsrecords and proceedings as evidence key: Evidence 352(6)county clerk recordif filed ten years, if no adverse claimed within ten years, isadmissible without proof or execution, if party gives three daysnotice to other party; certified copy admissible if original lostTEx. REV. CIV. STATS. ANN. Art. 3726b [repealed as tocivil actions, 1979; repealed as to criminal actions, 19851death certificatesproof of and discrepancies in 4 An1 Jnr POF 12definitionTEx. R. Ev. 1001(4)TEX. R. CRIM. Ev. 1001(4)foreign jurisdiction, law ofelements of proof 35 Am Jur POF 147-208forgeryTEX. PENAL CODE $32.21(1)(A)(iii)generallyTEX. R. Ev. 1001-1008Tax. R. CRIM. EV. 1001-1008haudwritingWnde 11. Gah~eston, H. & S. A. Ry. Co., 110 S.W. 84 (Tex.Civ. App. - 1908, writ refd) (carbon copy admissible as handwritingsample)indictment, substitution when lost or destroyedMcClellan 11. State, 701 S.W.2d 671 (Tex. App.-Austin,1985)judgmentcertified copy TEx. CODE CRIM. PROC. ANN. Art. 43.113elements of proof 35 Am Jur POF 147-208lost originalTEX. R. CRIM. Ev. 1004TEX. R. EV. 1004unavailability of best evidence, carbon copy 2 Am Jur POF486-90lost instrument: revocation of prior will by revocation clausein lost will 31 ALR4th 117lost or destroyed will, proof of 14 Am Jur POF 531-55record on appeal TEX. CODE CRIM. PROC. Art. 40.09see generally, Weinstein's Evidence under duplicates of documents§§1001-1004mechanical recordingdefinitionTEX. R. EV. 1001(1)official records are admissible:writings by state agencies or employees; records and copiesof state legislative proceedings; federal, other state, foreignrecords including those of notaries; laws and rules of foreigncountries; also proof of a lack of a record; provided reasonablenotice is given to the other party before trial to avoid unfairsurprise; if they are properly authenticatedTEX. REV. CIV. STATS. ANN. Art. 3731a [repealed as tocivil actions, 1979; repealed as to criminal actions, 19851copies of state and business records are admissible withoutproof of loss of originalTEX. REV. CIV. STATS. ANN. Art. 3731b [repealed as tocivil actions, 1979; repealed as to criminal actions, 19851opinion surveyelements of proof 35 Am Jur POF 147-208photographs3 AM JUR TRIALS IphotostatingdefinitionTEX. R. EV. 1001(1)pleadings and procedureTEX. R. CIV. PROC.accompany citation, Rule 101failure to furnish to adverse party, Rule 72special exception, Rule 91substitution for lost or destroyed papers, Rule 77certified copies, Rules 73, 75suppleniental, Rule 70documents, request for admission of genuineness, Rule 169instruments, Rule 59subpoenas, service, Rule 178FED. R. CIV. PROC.admission of genuineness, Rule 36(a)admission of genuineness, refusal to admit, Rule 37(c)authentication, Rule 44(a)38 VOICE for the Defense / February 1987

motions, FED R. APP. PROC. 27production of documents, order, Rule 34production of documents, rehsal to produce, Rule 37(b)request for production of documents for copying, forms,FED. FORM 24summons, service, Rule 4(d)written, instruments, exhibit in pleading, Rule 10(c)TEX. R. CRIM. PROC.. certified copies, Rule 20(h)indictment and information, Rule 10searches and seizures, Rule 41subpoena, service, Rule 17(d)when signing . - witness denies si~ning, - -. proof may be made byother means.TEX. CODE CRIM. PROC. ANN. Art. 38.26 [repealed 19851refreshed memory with copyJohnson v, State, 478 S.W.2d 952 (Tex. Crim. App. 1972)State records of notes and other financial matterscertified copies of notes and other money records maintainedby State department heads are as admissible as the originalsTEX. REV. CN. STAT. ANN. Art. 3731 [repealed as to civilactions, 1979; repealed as to criminal actions, 19851statutesHalt v. State, 160 S.W.2d 957 vex. Crim. App. 1942)TEX. Clv. STAT. ANN. art. 1176 $3typewritten-questioned documentsexpert consultation-pretrial consideration 20 Am Jur POF301-7elements of proof 20 Am Jur POF 308 et. seq. - .carbon copies 20 Am Jur POF 293-6 . .venuecopy of file required to determine venue for action in severalcounties Dorsaneo, TEXAS LIT~OATION GUIDE $392.02131voluminous recordselements of proof 35 Am Jur POF 147-208willscertified copies to probate Dorsaneo, TEXAS LITIGATIONGUIDE 5392.142attorney's carbon copy production of will at court Dorsaneo,TEXAS LITIGATION GUIDE $392.09[1]revocation of prior will by revocation clause in lost will 31ALR4th 117proof of lost or destroyed will 14 Am Jur POF 531-55nouaccessibility of will: sufficient proof 86 ALR3d 980elements of proof 35 Am Jur POP 147-208witnessrefreshing recollection with a copyelements of proof-predicate 10 Am Jur POF 268-75WDWI Practice Gemsmnrinuedflo~rom poge 36-APPENDIX A10. Rights of accused in criminal prosecutionsis further d~stineuished from Mirnrzdo in that it Sec. 10 In all crinzi,ml prosecutions the accusedrequiru, in addition a, thc warnings, a require- shall have a speedy public trial by an impartial jury.ment that the w\pen is lakcn without unnerw He shall have the right to demand thcnamre and causemy dchy to a m;rgiclratc for funhcr adviging of the accusation against him, and to have a copyof his rights.therwf. He shall not be campelled to give evidence8. McCambridge712 S.W.2d at 510 (Taguedis- against himself, andslmllha~~etl~erighl ofbzingheard9.senti@.by hitme% or wenmi or balh, shall be canfrontedSee Appendix B for the text of Art.I$19, Tex. by the witnesses against him and shall havecompul-Const., Art. 1.04, Tex.C.Cr.Pro., and of the wry process for obtaining witnesses in his favor, ex-Fourteenth Amiendment.cept that when the witness resides out of theState and10. State courts, through theirconslitutio~s, should the offense charged is a violation of any of the antistriveto protect stale and federal constitutional trust laws of Ulis State, the defendant and the Staterighuand not limit them. Breman, State Con- shall have the rightto prcduce and have the evidencestitutions n,~dthe Prmection ofIndividv.d Rights, admitted by deposition, under such mles and laws as90 Hm.L.Rev. 489 (1977); Lewis and Trichler, the Legislature may hereafter provide: and no pernieNarionnliutliorz of the Bill of Rights, 20 son shall be held to answer for a criminal offense,Wa8h.L.J. 2 (1981). Wilkes, IheNewFedeml- unless on an indictment of a grand jury, except inism in Cri~niml Procedtwe: Slate Coan Ewsion cases in which thepuni=hment isby fine or imprisonoftheBurger Court. 62 Ky.L.1. 421 (1974); ment, otherwise than in the penitentiary in cases ofWilkes, More w the New Freedom in Crimi,ml impeachment, and in cases arising in the army orProcedure, 63 Ky.L.J. 871 (1975); Wilkes, Ihe navy, or in the militia, when in actual service in timeNeivFederniism in Cri,nindPrnceBure Revisit- of war or public danger.ed, 64 Ky.L.1. 729 (1976); S. Abrahamson, Amended Nov. 5, 1918.Cri~ni~miLntvnndStote Constitutions: Ute Enrergeticeof Srme Consn'tnlional Law, 63 Art. 1.05. Rights of AccusedTex.L.Rev. I141 (1985); Comment. Individ~tol 61 ell crir,zirml nmrecutiom the acmsed shall haveRighfsnndState Comtitutional literprefntims: ;. pedy puhlic trial hy sn iwpartial jury. Ile shdlPuuing First TlzingsFirsl, 37 Baybr L.Rw. 493 haw thc right to Cmand thc nalurc and ausc of the(1985).aciaAon against him. ;md 10 lwe P copy thereof.He shall no1 be compelled to give evidence againsthimself. Hc sltall haw the right ofbeing hemd byhimself, or counselor both; shall be confronted withthe witnesses against him, and shall have conipulsoryprocess for obtaining witnesses in his favor. Noperson shall bc held to answer for a felony unless onindiclnlenl of a grand jury.[Acts 1965,591h Leg., p. 317, ch. 722, $1, off. Ian.1, 1966.1APPENDIX B$19. Deprivation of life, liberty, ete.: due coursenf lawcourse of the law of the land.Art. 1.04. Due Course of LawNo citizen of this State shall he denied of life,liheny, property, privileges or immunities, or in anymanner disfranchised, exoepl by the due course ofthc law of the land.[~ets 1965,591h Leg.,p. 317, ch. 722, $1, cff. Jan.1, 1966.1In pertinent part, the Fourteenth Amendmentprovides:"No State shall. . .deprive any person of life, hbenyor property, wrthout due process af law.. . ." WFebruary 1987 1 VOICE for the Defense 39

From the Inside OutSo the Judge Will Not Consider Your Objections to the P.S.I. for Purposes ofSentencing, but Will Not Amend the P.S.I. for the Bureau of Prisons orFederal Parole CommissionorHow to Avoid Winninq the Battle and Losinq the Wor (Maybe) -(~gderal Rule 32(~)(3)(d))-Federal Rules of Criminal Procedure 32(C)(3)(d) generally specify that the Courlat the time of sentencing shall conduct fmdingsof fact on matters in dispute betweenthe Government and the Defense versionwith reference to the contents of a Pre-Sentence Report (Investigation) called theP.S.I. For years, the defense bar has beenplaced in a position of being told at sentencing,after valid objections have beenra~sed, that, "OK Counsel, for purpose ofsentencing this Court will not considerthat." This alone will not get the client therelief needed. While a Federal Judge maygive the Defendant the relief requested atthe time of sentencing, the Defendant (unlessgiven probation, in which case thematter should stiil be corrected) still hasto deal with the Prison Unit Designator ofthe Bureau of Prisons and (at least for thetime being) the Parole Commission.Mistakes that are not called to the attentionof the Court at sentencing pose a veryserious problem. One should not only ob-ject (I suggest objections be in writing), butshould be prepared to offer evidence in theDefendant's favor at the time of sentencing.(The burden of proof in matters of incorrectP.S.1 material is upon thedefendant in the 5th Circuit). The followingmotion should be of benefit, and if theCourt fails to grant the relief requested,and if the Defendant is allowed and canmeet his burden of proof, then the failureof the Court to enter findings of fact to forwardto the B.O.P. and Parole Commissionmay be attacked by Writ of HabeasCorpus under Rule 28 U.S.C. 2255.Not only will mistakes in a P.S.I. followthe offender to a prison unit of a highersecurity classification than he or shedeserves, but it can increase his paroleguidelines by months, or, in some cases,years.Further, do not wait until the day beforeIby Wm. T. Haberninz - with Federal Parole matters is thatI while the Lawver mav have looked overthe P.S.I. under timely conditions, theDefendant may have reviewed the P.S.I.for only a few minutes. It is suggested thatthe attorney explain to the Defendant theimportance of the P.S.I. and further explainthat the Defendant will be expectedto sign a Federal Government form reflectinghe has read the P.S.I.The following two motions are includedfor the benefit of those lawyers who do notcurrently have in their form freezer amotion on rule 32(c). The first motion isrfl I a pre-sentence motion to file before the/.. . ., , ,,. . ,1 1 : . 'Bill Hahent is a gradifate ofMidwster11Universify (B.A.) and Texas Tech UniversrtySchool of law. He joined the T.D. C.Staff Counsel for Inmates in 1973 and i~rI975 began his omp~ivatepractice whichis generally limited to matters involvingcriminal sentencntg, piison problerns.parole and relatedpost conviction nuzffers.He has oflees in the Houston and H~intsville,Texas areas.the sentencing to go review the P.S.I.Generally there should be a 10 day periodprior to sentencing to review that document(see 74 Georgetown Law Review at 850fnt. 68, citing 18 U.S.C. $3552(d)).How and what to object to in a P.S.I.should be the topic of another article of thiscolumn, but for now, one of the most frequent"objectionable" matters is the "generalconclusion" damning the defendant,which has no supporting or underlyingbasis in fact. Example: Defendant X is thelargest dope dealer in East Texas.Another regular problem I find in deal-court date for sentencing. The second isa motion filed recently in a North Carolinacase where fifteen co-defendants were beingsentenced at the same time and theCourt refused to allow any attorney tomake an oral record (other than to object)of the objections each had to the individualP.S.1.k In that particular situation the noticeof objection was made, and the motionwas filed two days after the hearing. Thevalidity of the filing of such motion twodays after the sentencing I cannot speak to,hut in light of the current state of therecord, the filing of this motion should protectthe record and form the basis for aWrit of Habeas Corpus under 28 U.S.C.2255. Time will tell.UNITED STATES OF AhlERkAY CRIMINAL NO -XO'lTOh' FOR RELIEF UNDER RULE 320COMES NOWdefendantin the above styled cause, and makes thishis motion for relief under Rule32(c)(3)(D), F.R.C.P. and would showthis Court as follows:40 VOICEfor the Defense /February 1987

I.Defendant is to be sentenced by thisHonorable Court on the - day of, 19L. At this time the Defendant,through his C o u n s e Lfiled written objections to specific statementsas below described in the Pre-Sentence Investigation. At the time of sentencingCounsel for Defendant orally willcall to the attention of the Court the disputeditemscontained in the P.S.I. At thattime the Court is requested to consider heardisputedmatters in the P.S.I. Because ofU.S.C. 2255) to require Judge to appendfindings of facts to P.S.I. to forward toB.O.P. and Parole Commission).PRAYERWHEREFORE, PREMISES CONSI-DERED Defendant prays that this Courtgrant the following relieE(I) That a hearing be granted at whichtime the Defendant and Counsel be allowedto raise the objections above mentionedand to offer evidence thereon, and(2) that upon such hearing the PSI.the great number of Defendants to be sen- should be corrected and the Court entertenced in this cause during the same court findings of fact that correct the current stasettine.-. it is anticioated that such a reouest tus of the P.S.I.. or in the alternative.will be time consuming.11.The specific objections filed to theP.S.1.are as follows:The P.S.I. states thatIn fact the Defendant alleges that suchrepresentations are incorrect and should beexcluded from the P.S.I., and that the followingfacts should be included:m.The P.S.I. is an important document notonly for sentencing, but for prison classification,and for parole consideration. As theP.S.I. currently stands, the Defendant willbe sentenced on information that is materiallyincorrect. To deny the Defendant anopportunity to meet his burden of proofand effect changes in theP.S.1. at the timeof sentencing above described althoughCounsel has made an effort to call the mattersto the attention of the Court, wouldbe a denial of Due Process and Equal Protectionand would result in the Defendantbeing denied the benefits of being sentencedbased on a correct P.S.I., and furtherfor the Court to fail to act upon suchconditions when called to the attention ofthe Court in writing, and orally at the sentencing,would be a violation of Rule 32(C)F.R.C.P. (State v. Vebzquez, 748 F.2d.974 (5th Cir. 1984); U.S. v. Castillo-Ronwn, 774 F.2d. 1280 (5th Cir. 1985)(even where the Judge did not rely on therepresentations objected to by defendantscounsel case was remanded (under 18(3) that if thk Court at sentencihgchwses to disregard the mistakes abovedescribed, that on a date certain and beforethe Federal Bureau of Prisons has timeto consider the current status of theP.S.I.,that this Court grant a hearing to reviewevidence of the Defendant, and enter fmdingsof fact to forward with the PSI. tothe Bureau of Prisons and the US. ParoleCommission.Respectfully submitted,Wm.T. HabernAttorney at Law1818 Elmwood Ct.Sugar Land, Texas 77478(713) 242-2244CERTIFICATE OF SERVICEI, Wm. T. Habern, Attorney for Defendantdo hereby certify that the foregoingmotion was forwarded to the U.S. Attorneyfor the Eastern District of Texas byplacing same in the U.S. mail, certified,postage prepaid, on this the - day of, 1986, forwarded to 211West Ferguson in Tyler, Texas 75702.Wm. T. HabernORDERON THIS DATE came on to be beardthe Motion of Defendant under Rule 32(c)F.R.Cm.P. requesting this Court to setaside time to hear evidence of alleged mistakesin the Defendant's Presentence SentenceInvestigation. The following orderis entered:(I) That the Defendant shall be given afull hearing and allowed to present his evi-dence at the time of sentencing to determineif there should be alterations in thecurrent status of Defendant's P.S.I.(2) that because of the great number ofDefendants to be sentenced on the date setfor sentencing, that a evidentiary hearingon behalf of the Defendant on the -day of , 1987 at .M.O'clockin the Court Room of This Court.(3) That this motion is in all things denied,andit was noted that Defendant fdeda timely and proper objection with theCourt as to this ruling.Judge PresidingIN THE UNITED STATES DlSTRlCT COURTFOR THEHASTEIZX DISTRICT OF NORTH CAROLINARALEIGH DIVlSIONUNIIED STATES OF AMERlCAVCRlMlNAL NOMOTlON FOR RELIEF UXllER RUIX 3 X0COMES NOW defendant inthe above styled cause, and makes this hismotion for relief under Rule 32(C)(3)(d),F.R.C.P. and would show this Court asfollows:1.Defendant was sentenced by thisHonorable Court on the - day of, 19-. At the time of sentencingDefendant, through his Counselfded written objections tospecific statements as below described inthe Pre-Sentence Investigation. At the timeof sentencing Counsel for Defendant orallybegan calling to the attention of the Courtthe disputed items contained in the P.S.I.At that time the Court indicated that itwould not consider hearing matters ofP.S.I. objections because of the great numberof Defendants to be senteuced in thiscause during the same court setting. (Seeattached transcript beginning at pageline-.)11.The specific objections previously filedto the P.S.I. are as follows:The P.S.I. states thatIn fact the Defendant alleges that suchrepresentations are incorrect and should beexcluded from the P.S.I., and that the followingfacts should he included:February 1987 / VOICE for the Defense 41

m.The P.S.I. is an imporfanant document notonly for sentencing, but for prison classification,and for parole consideration. In thiscase the Defendant was sentenced based onmaterial incorrect information as abovedeserihed. Defendant was denied the opportunityto correct, or have considered bythis Court Defendant's version of the mattersabove described although Counsel didmake an effort to call the matters to the attentionof the Court. As a result the Defendantwas denied the benefits of beingsentenced based on a correct P.S.I., andfurther that for the Court to fail to act uponsuch conditions when called to the atten-tion of the Court orally and in writing isa violation of Rule32(C) F.R.C.P. (Statev. Velazquez, 748 F.2d 974 (5th Cir.1984); U.S. v. Casrillo-Roman, 774 F.2d1280 (5th Cir. 1985) (even where theJudge did not rely on the representationsobjected to by defendants counsel case wasremanded to require Judge to append findingsof facts to P.S.I. to forward to B.O.P.and Parole Commission).PRAYERWHEREFORE, PREMISES CONSI-DERED Defendant . oravs , tbat this Courtgrant the following relief:(1) tbat a hearing be granted at whichtime the Defendant and Counsel be allowedto raise the objections above mentionedand to offer evidence thereon, or in the al-ternative,(2) that upon such hearing the P.S.I.should be corrected and the Defendantgiven a new sentencing hearing based uponsuch corrected information, or in the alternative,(3) that this Court review the evidenceof the Defendant and enter findings of factto forward with the P.S.I. to the Bureauof Prisons and the US. Parole Commission.Respectfully submitted,Wm. T. HabernAttorney at Law1818 EImwood Ct.Sugar Land, Texas 77478(713) 242-2244Aliens as Criminal Defendants-cmIinuedf/o,n pnge 23dersigned does not mean to instruct the Cowas to what would be a fair and just decision.The preceding explanation is only intended tooutline for the Court some of the collateral consequenceswhich would be nnposed under theImmigration Act if the Defendant IS not granteddeferred adjudlcation. Granting deferred adjudicationwould seem to ensure that the punishmentresulting from this prosecution by thestateof Texas would be limited to the penalties envis~onedby Texas laws.The collateral penalttes of deportation, exclusion,etc., for the most pan are not withinthe discretion of the Immigration Service tooveslook: they would be mandatory once Mr.was convicted. For this reason, theCourt is in a posit~on to determine whether ornot this Defendant should he deported as a consequenceof the present chargesground of exclusion in Section 212(a)(9). Whenit becomes effecrlveon November 1, 1986, theamendment will completely exempt from thatexclusion ground aliens convicted of an offensefor which the sentence actually imposed did notexceed a term of six months imprisonment.Where the alien has not beenconvicted hut admitsthe commission of the offense, he will beexempt if the maximum sentence that mighthave been imposed for tbat offense could nothave exceeded one year. In either situation thealien must have coninrined only one offenseandmust be otherwise admissible.The amendment is buried in Section 220 of'l'itlc II, P.I.. 98-473. Enacted is a rider tn anCode. If the US. or the Distriot of ColumbiaCode provide for a sentence of more than oneyear for the crime in question it is deemed tohe a felony under US. standards. As a result,under current law, a convicted alieninsuch caseis not exempt fromexclus~on even if he actuallyhad been sentenced to imprisonment for sixmonths or less. Matter of T, 6 I&N Dec. 508(AG 1955).Interestingly, the 1984 amendment appearsunder the heading "TECHNICAL AND CONFORMING AMENDMENTS " Nevertheless, under theplain-meaning principle of statutory constructionthe language of the amendment speaks foritself. It also has the great virtue of simplifyapprt>priationbill, Tillc I1 is called the Corw ing the statute. If the alien was convicted, the@hensive Crime Control Act of 1984. It length of the sentence actually imposed will beamends the second sentence of Section 212(a)(9) the sole criteria. If the alien was not convictedaf the Immigration and Nationality Act by delet- hut admits the conlmission of the crime, theing the restrictive language which exempts an length of the sentence that might have been imallenfmm the criminal ground of exclusiononly posed for that crime under the governing lawif the conviction or adnlission was for a crime will control. No longer will it he necessary toclassifiable as a misdemeanor under the provi- try to equate a foreign crime with its US. counsionsof Title 18, United States Code. terpart to ascertain whether the crime was a mis-Respectfully subm~tted,Sectlon 212(a)(9) bars aliens who havebeen demeanor under US. law. In many instancesconvicted of a crime involving moral turpitude foreign crimes do not lend themselves to beingAlan Vomackaor who admit thecommission of such a crime. equated with U.S. crimes.The second sentence of paragraph (9) saves It is also noteworthy that the second-sentenceAppendix I1fmm exclusion under this paragraph an alien exemption in Section 212(a)(9) applies automawhowas convicted of a misdemeanor classifi- tically and is retrospective as well as prospec-Maurice A. Roberts, Editorable as a petty offense under 18 USC l(3) . bv . tive. Macrer ofH. 6 I&N Dec. 738 C3IA 1955).Interpreter Releasesreason ofthe punishment actually imposed, or Many aliens fonnd ineligible under &ing lab815 15th Street. NWwho admits the commiss~on ofan offense elas- will be in a oosition to seek reconsiderationRoom 610 sifiable its a misdemeanor under 18 USC l(2) when the amkhnent becomes effective.Washington, DC 20005 by reason of the punishment which might have For ready reference there are attached copiesbeen imposed. For example, where the crime of current Section 212(a)(9) and the pertinentDear Maury: was committed abroad, under existing law and amendatory provisions in P.L. 98-473.You may wish to bring to the attention of your until the amendment becomes effective, it isreaders a relatively nnnaiced amendment of the necessary to identify the equivalent offense in Sincerely,Immigration and Nationality Act which will Title 18 of the US. Code, or if not contamedmake a significant change in the criminal there, in Title 22 of the Distnct of Colun~bia Sam Bernsen42 VOICE for the Defense / February 1987

The Investigatorby Jack MurrayLast month we explored the variousways in which photographs could he usedin the courtroom. This month I would liketo explore some of the problems in preparingphotographs and getting them admittedinto evidence.Photographs are admissible in evidencewhere they tend to illustrate any materialfact in the case or shed light on the transactionbefore the court. (Civil: Empire etc.11. M~regge, Com App 143 SW (2) 463;Criminal: Walker 1,. State, 60 SW (2) 455.)In aggravated assault cases (serious bodilyinjury) they are admissible to prove, as afact, the assault, and also to aid the juryin fixing the punishment. (Lnngham 474(2) 197; Bfaxs v. Beto. CA-5 371F (2)598; McFarIand 266 (2) 133.As a general rule, in Texas, if you candescribe it with words, it is admissible asa photograph. The most commonly quotedcase in this area is Mallin v. State, 475 SW(2) 265, 267, where Judge Odom wrote:We hold that if a photograph is competent,material, and relevant to theissue on trial, it is not rendered inadmissiblemerelybecause it is gruesome,or might tend to arouse thepassions of the jury, unless it isoffered solely to inflame the mindsof the jury. If a verbal descriptionof the body and the scene would beadmissible, a photograph depictingthe same would he admissible. Inthis case a verbal description of thebody and the scene are admissible,therefore, it was not error to admitthe photographs. We recognize therewill he cases where the probativevalue of the photographs is veryslight and the inflammatory aspectsgreat; in such cases it would be anabuse of discretion to admit thesame. The former rule in this state,that gruesome photographs are notadmissible unless they tend to solvea disputed fact issue as discussed inB~rm v. State, 388 SW (2) 690 ishereby overruled to the extent of anyconflict with this decision. Tezeno484 SW (2) 374, 384; Blrrks 583 (2)389.Jack Murray is the owner of Sozrth~vestRecovery Services, Dallas, Texas. He hasa BSflom the University ofHa~@ord, MBAfrwn the University of Connecticut and hashad specialized accident investiaation Preparation of photos for courtroom usetrair?irlg at the Traflc Inaitute of~ort~l- is almost as important as the photographsit2estern University and Accident Recon- themselves. These are two choices forstruction School of Texas A&M University. presenting photographs. Large displayA menlber of the North Texas Private In- prints can be made and shown on an easelvestigators Association, The National As- which is then positioned so that the judge,sociatio~r of Investigative Specialists and jury, attorneys and the witness can see thethe National Association of legal Investi- exhibit. This is useful when a witness maygators, he has been a licensedprivate in- have to give testimony about attributes ofvestigator in the State of Taas since 1976. the photograph. These are particularlyHe has worked nrrmerorrs civil and crinli- helpful when trying to show relative posinalcases in Texas, Louisiana and New tions of fixed objects at a crime scene (lo-York. He has attended civil and criminal cation of a window, etc.). Large prints alsoinvestigatio~t seminars in Chicago, provide dramatic impact precisely becauseWashington, D. C., San Antonio, and re- of their size. This may give rise to objeccentlywas a speaker at the Region I Semi- tions upon introduction of such exhibits.nar of the National Association of Legal If you choose to have individual photosInvestigators in Philadelphia, Pen~l- for the jury, I strongly recommend they besylvania.mounted on styrofoam type backing tokeep them straight and flat. There areseveral products on the market where youpeel off a thin paper like coating and pressthe photos on. This material comes in varioussize sheets including the standard8x10.hi those cases where a filter has beenused to reduce glare on pavement or to increasecontrast in the photo this must benoted and the photographer should beavailable to answer any questions that mayarise. There are also situations where, forthe purpose of poiuting out important detailsof a scene to a jury, you might wantto spray paint the path of travel of a vehicleor an object. This does not affect admissibilitywhen the presence of the marks areverified and explained by the witnesses."Obviously, when a photographic representationincludes foreign objects marking.such details it is not sufficient that thegeneral accuracy of the photograph beverified. Someone must also explain whythe objects appear therein and what theypurport to represent or mark. If the objectis nothing more than a marker, the exhibitis not subject to the objection that it is a'posed' picture for it does not purport torecreate a bygone scene." (EvidenceHandbook,1980 Northwestern UniversityPress.)In trying to establish directions (North,South, etc.) one common practice is tophotograph something at the scene with aletter on it to designate the direction youare looking. I often do this by using tapeon the side of my camera case and photographingthe case in a prominent place inrelation to other easily identified objects.The main thing here is to photograph thescene twice, once with the camera case,once without. Another way of accomplishingthis is with acetate overlays and crayonmarkings.When objects are introduced into a scenemerely to indicate distances, points anddirections, it makes little, if any, difference,as regards to admissibility of thephotograph, whether the subject is markedFebruary 1987 1 VOICE for the Defense 43

EthicsPropriety of Supplementing the Fee in a Court Appointed . . Caseby prof. Walter Steele, Jr.Among nations, the United States pointswith pride to the 6th Amendment to theUnited States Constitution with its right tocounsel guarantees, but those constiMionalguarantees are implemented tlrrongh a systemof judicially sanctioned involuntaryservitude known as court appointment;they are not implemented through a nationalsystem of legal aid. Lawyers on whomappointments are imposed are told thattheir privileges as members of the bar arepaid for in part by rendering service to indigentcriminal defendants, either for nofee or for some statutory fee that is wellbelow what a reasonable fee would he.Some lawyers accept their fate gracefully;others grudgingly; and some lawyers actuallyseek out court appointments.Regardless of their attitudes abont workingfor inadequate fees when court appointed,all lawyers prefer to be reasonablycompensated for their legal serviceswhenever possible. Consequently, if apresumptively indigent criminal defendantoffers some payment, or if other personsare willing to make some payment for thebenefit of the indigent defendant, a courtappointed lawyer is tempted to accept theoffer at least to the extent that the offeredmoney supplements the staturory fee to thelevel of a reasonahle fee. In fact, lawyerssometimes actively solicit the defendantand others to supplement the statutory feein court appointed cases. Can a lawyerethically accept a supplement to a fee paidby the court under the provisions of Article26.05 Texas Code of Criminal Procedure?Is there something wrong or inappropriateabout a lawyer receiving a reasonablefee even in a court appointed case?At first blush one might wonder how thisissue could arise since a defendant entitledto appointed counsel has no money to pay;but as all experienced practitioners know,advers~ty motivates clients, and sometimesProfessor Walter W. Steele, Jr. ((LIB.SMU) (LL. M. U. T. Austin) leaches criminallaw, criminal procedure and profesionalresponsjbiliry, antong other subjectsat Southern Mefhudirt Uniwrsip School ofLaw.a defendant has some assets and is anxiousto pay some amount, even though thatdefendant cannot pay a reasonable fee. Occasionally,a person or a group (i.e.church) concerned abont the defendantsteps forward with offers of money. Onrare occasions complete strangers makeoffers to contribute toward the legal expensesof a certaindefendant. Since everyoneadmits that the lawyer is earning areasonable fee why notpay the lawyer areasonable fee made up in part by theamount awarded by the court and in parTby money paid by the defendant or paidby someone on behalf of the defendant? Isit ethical? In a word-No!To my surprise, I could find no Texascases on this subject, but there is a con-siderable amount of material from otherstates and the inherent strength and wisdomof the arguments preseuted by theseout of state sources makes them especiallycompelling. Let us start with Drinker,whose book, LEGAL ETHICS (1953) wasthe first thorough collection of Americanthought about legal ethics. Drinker tells us:"Where one appointed by the courtto defend a supposed indigentprisoner finds, on consulting him,that he is not in fact indigent, thelawyer may not make a private employmentcontract for legal serviceswith himinlieu of the fee to bepaidby the county, but must require hisclient to advise the court of the truefacts and abide the court's redeterminationof his indigently hefore hecan make any agreement. Any retainerpaid by the prisoner or hisrelatives should be retumedand theybe free to employ other counsel."Drinker, LEGAL ETHICS (1953) pp.62-63.Subsequently, Drinker's viewpoint wasadopted by the Supreme Court of NewMexico in Hale v. Brewsrer, 467 P.2d 8(Supreme Court N.Mex. 1970). There, thecourt appointed lawyer obtained a promissorynote from the defendant in considerationof the services to be rendered by thecourt appointed lawyer. Later, when thelawyer suedon the note, the court declaredthe note void for lack of consideration:"We do not see how appellant (defendantin the criminal case) received anything thathe was not entitled to receive without paymentof any amount, accordingly there isno consideration" p. 11.A contrary view was expressed by theSupreme Court of Utah in Oliver v. Mitchell,376 P.2d 390 (Supreme Court UtahFebruary 1987 / VOICEfor the Defense 45

1962) where the court pointed out that anindigent client does not lose the power tocontract. The court considered the client'spromise to pay not only enforceable but asign of good faith and good spirit. Note,however, that when Oliver v. Mitchell wasdecided Utah had no statute awarding at-torney's fw to lawyers in court appointedcases. The absenceof a statnte such as Article26.05 Texas Codeof Criminal Proceduremay well be the key to Oliver.Consider the implications of a courtawarded fee under Article 26.05. First, thecourt has made a finding based upon someevidence that the defendant is too impecuniousto pay for legal service. Second,when setting the fee the court assumes, atleast implicitly, that the court awarded feeis the only money the lawyer will receivefor his services. If the lawyer knows thatthe court's assumptions are incorrect itseems obvious that thelawyer must not acceptthe court awarded fee without informingthe court of the facts.In Opinion 80-38 TheKansas Bar Associationheld that a court appointed attorneycan seek from the client or others thedifference between the statutory fee and areasonable fee provided the court is informed.In Opinion 452 the Oregon StateBar held that a court appointed lawyer maynot charge an indigent defendant fees in additionto the payments by the court. TheKentucky Bar Association came to thesame conclusion in Opinion E-282.Perhaps the most thorough considerationwas given the problem by the West VirginiaStateBar. In Opinion 83-5 they heldthat the statutory fees are the exclusive feesthe lawyer may accept and furthermoreplaced a duty on court appointed counselto advise the court and to seek to withdrawif the attorney learns that money to pay afee is available from any source.Unlike Texas, some jurisdictions havestatutes that speak to the issue of the rightof a court appointed attorney to supplementhis fee. 18 USC 3006A (f) contains a provisionto the effect that a court appointedattorney may not accept additional feesfrom any source unless authorized to doso by the magistrate. Kentucky has a datutemaking it acrime far a court appointedattorney to ". . .accept any fees for therepresentation of (mdigent criminal defendants).. .)" KRS 31.250. In Kenfucky BarAssociation v. Dungan 586 S.W.2d 15(Supreme Court Ky. 1979) a lawyer wasdisbarred for violating that statute. Similarly,Maine Rule of Criminal Procedure44 (C) states ". . .appointed counsel shallunder no circumstances accept from thedefendant or from any one else on his hehalfany compensation for services or costof defense, except pursuant to court order."Thus it seems clear, although there areno Texas sources on point, that a court appointedattorney may not ethically seek tosupplement his court appointed fee, at leastwithout advising the court in advance.Title 26 USC $6050 (1) establishesreporting requirements for lawyers relatingto cash payments over $10,000. TheNational Association of Criminal DefenseLawyers appointed a committee to examinea number of legal issues raised by thenew law. The committee concluded thatthe issues raised can be satisfied by the useof a notice from which will be given topotential clients and signed by them.A tentative draft for this notice is givenbelow:NOTICE KIIGAKI)INC; THE NEWCUKKENCY TRANSACTIONREPORTING LAWUnder a new Internal Revenue Codelaw(Title 26, United States Code, Section6050 (I)), all persons, including attorneys,who receive more than $10,000 in cashpayments must file a form with the InternalRevenue Service stating the amount ofcash received and the name, address, socialsecurity number and other identifyinginformation of the person paying the cash.If cash is paid by one person for the legalfees of a friend, the form must include thenames and information for both people.The Internal Revenue Service has said thatif the lawyer does not file the form he willbe prosecuted for a criminal offense. Acopy of the new law and the form issuedby the Internal Revenue Service for reportingcurrency transactions are attached.We believe that this currency transactionreporting requirement is a serious threatto the attorney-client relationship and weare trying to obtain an exemption from thereporting requirement for attorneys fromthe IRS. We also will be involved if necessawin law suits to attack this law. In themeantime we believe it is important thatall possible clients of this firm understandthe effect of the new law. In particular, webelieve that as part of our responsibility aslawyers we must advise you that the filingof the currency reporting form may causea criminal investigation of the client, orcreate evidence of cash payments thatcould be used against a client in prosecution.The form must be filed in connectionwith any transaction involving the paymentof $10,000 in cash. A transaction in cashdoes not include, and therefore we are notrequired to fde a form for a payment bypersonal check, travelers' checks, bankcheck, bank draft, wire transfer or otherwritten order that does not involve an actualphysical transfer of cash. The form isnot required if the payment is stocks,bonds, real estate, cars, jewelry, or otherpropere.The currency reporting form must befiled when $10,000 in cash is paid in onetransaction or in a series of related transactions.Therefore, if several payments aremade for legal fees and these paymentshave a combined total of over $10,000, Wemust report the transaction to the InternalRevenue Service.We strongly object to the fact that thegovernment is attempting to interfere withthe confidentiality of the attorney-clientrelationship and make thelawyer a witnessfor the prosecution. However, until thelawis changed or declared unconstitutional, wehave no choice but to comply with the currencytransaction reporting requirements.This notice is solely for purposes of advisingpotential clients of this developmentin the law and is not advice on how to paylegal fees. That is a matter which each personmust decide for himself. It does notmatter to us how you choose to pay yourfees.I have read the information in thisnotice. I have not been advised by anyonein the Law Offices ~fto pay my legal fees in any particular way.I understand the Law Offices of -have no interest in how the legal fees arepaid. They havenot made any suggestionsto me or entered into any agreements orpIan with me relating to the manner of paymentof legal fees or the filing of the CurrencyTransaction Report.I have read this two page document.DateSignaturecontiwed ed page 5146 VOICE for tlte Defense /February 1987

New Motions7he following Motion for Severancebased upon inconsistent defenses anlongco-defendants was presented in a dragconspirncytrial before United States DistrictJudge Harry Lxe H~dspetlr, whogranted the Motion. 7% Motion ~vosfnrnislredby Joseph (Sib) Abrultanl, Jr. andAwe1 (Rod) Ponton III ofEI Paso.The other Motion to Req1rh.e the Prosecrrtorto Follo~v the Fourteenth Anrendnrenrin Its esercise of Peremptory Clzaller~gesisfrrrnisl~ed to us by Mr. Peter Lesser ofDallos, Texas.IN THR unrmn STATFS DISTRICT COURTFOR THE WESTERY DISTRICT OF TEXASEI. r*so orvwoxUNlThD STATES OFALIERICA. )V. ) NO. EP~86CR~123DEFENDANT 1 1OLFRFDAhT3 SECOhV MOTIOS FOR SE\'ER,LVCETO THE HONORABLE HARRY LEEHUDSPETH, JUDGE OF SAID COURT:COMES NOW DEFENDANT 1, Defendantin the above numbered and entitledcause, by and through his attorneys ofrecord, JOSEPH (SIB) ABRAHAM, JR.,and ARVEL (ROD) PONTON 111, andrespectfully moves this Court for a severanceof his trial from that of the trial ofhis co-defendant, DEFENDANT 2, andfor grounds therefore would show thisCourt the following:I.That this cause is set for trial on Decemher1, 1986.11.Since this Defendant's filing of his lastMotion for Severance on September 26,1986, and this Court's Order denying theMotion for Severance on November 18,1986, it has become apparent to counselfor this Defendant, through his conversationswith Attorney Robert Harris, counselfor co-Defendant, DEFENDANT 2,that co-Defendant DEFENDANT 2'sdefense of the charges is not only mutuallyantagonistic to that of the defense ofDEFENDANT 1, but mutually exclusive.111.Practicallv the only evidence theGUVC~~IIICII~ lrns to provc their i~llegalionsol l)ct'cndi~nt l)liI:I?NI)ANT I hcing involvedin a conspiracy in this cause is (1)an equivocal telephone conversation datedJuly 28, 1986 (said conversation betweenconfidential informant INFORMER 1 andthe Defendant DEFENDANT 1; and (2)a telephone conversation on August 6,1986, (between Defendant DEFENDANT1 and the confidential informant INFORM-ER I), which is also equivocal in its interpretation.IV .The evidence against co-DefendantDEFENDANT 2 is, to say the least, overwhelming.There are numerous taped telephoneconversations between #2 andundercover agents for the Drug EnforcementAdministration, numerous reports ofsurveillance wherein #2 is making arrangementsto sell cocaine to the Drug EnforcementAdministration agent, No. 2 goingto a Government airplane at the El PasoInternational Airport to view one milliondollars in cash, and the fact that No. 2 delivered30 pounds of cocaine to SpecialAgent Thomas C. Ahr, Jr. on August 5,1986.v.Co-Defendant DEFENDANT 2 has indicated,through his attorney, that he is intendingto take the stand, admit his involvementin the instant offense, fullydiscuss his version of DEFENDANT 1'salleged involvement in the instant conspiracy,and attempt to allege that he wasentrapped by the Government into committingthe instant offense. In short, he willbecome the one best witness the Governmentwill have against his co-DefendantDEFENDANT 1. DEFENDANT 1 neverspoke to any undercover Governmentagents. Any testimony of the confidentialinformant INFORMER 1 in this case ishighly suspect. INFORMER 1 was paid$17,000.00 by the Government in thiscase, and he has an extensive criminalhistory.v1.DEFENDANT I denies any involvementin the instant offense, which tookplace on August 5, 1986.VII.Co-Defendant DEFENDANT 2 is goingto take the stand in this cause and admitboth his involvement in this case and thathis involvement was caused by both theimportunations of the Defendant DEFEN-DANT 1 and of Government agent Ahrand confidential informant INFORMER 1.DEFENDANT 2 will take the stand anddirectly accuse DEFENDANT 1 of settingup this deal and involving No. 2. Therefore,in this case, Def. 1 will face twoprosecutors-the Assistant United StatesAttorney and the counsel for DefendantDef. 2. In this case, Defendant No. 1 willface two "star witnesses" against himconfidentialinformant INFORMER 1 (forthe Government) and DEFENDANT 2(the co-Defendant).VILI.In this case, severance is mandated underFederal Rules of Criminal Procedure14, as was done in United States v. Salo-I~OII, 609 F.2d 1172 (1980). In Salornon,one defendant denied involvement in adrug prosecution. The other defendant tookthe stand to state that the co-defendant was"the man" and that the Government agentshad entrapped him (the testifying defendant)into facilitating the transfer of thedrugs from "the man" to the police. Despitethat trial court's instruction to the jury to"compartmentalize the evidence," the FifthCircuit reversed the case, finding that therewas such prejudice in the facts of that casethat the Defendant Salomon must receivea new trial, despite the fact that the Defendantfailed to show mutual exclusivity ofdefenses.February 1987 1 VOICE for the Defe~ise 47

In this case, as in Salomon, once Def.2 takes the stand, he will open himself upto cross-examination of other drug dealingshe has had with the Government, aswell as to cross-examination examinationon his criminal record. Such a spilloverwill prejudice the rights of DEFENDANT1 to a fair trial. In this case, as in Salomon,the need ofjudicial economy will notconflict with the grant of a severance. Thistrial, as in Salornon, will last only a relativelyshort time and involve but twodefendants and an uncomplicated factualsetting. It will not be impractical to conductseparate trials. See Salonton, 609 F.2dat 1177. See also United States v. Joltrrson,478 F.2d 1129 (5th Cir. 1973).(Severance mandated when defendant deniesact, and co-defendant admits act, andacting with defendant, but denies havingrequisite criminal intent), where, in a casewith two defendants, it would not havebeen very time consuming, and entirelypracticable, to have accorded themseparate trials, 478 F.2d at 1137. Denialof severance was error in Johnsort, as inSalonton.IX.Although the Fifth Circuit no longer adheresto the standard that, for severanceunder Rule 14, the defenses must be mutuallyexclusive. United Stales v. Rornanela,726 F.2d 173 (5th Cir. 1984). (Severancemust be granted uot only if each defendantbases his defense on direct accusation ofco-defendant; severance required if onlyone co-defendant accuses the other, and theother denies any involvement.) In this case,as in Unitedstates v. Crawford, 581 F.2d489 (5th Cir. 1978), each Defendant willhave to "confront"not only hostile wit~lessespresented by the Government, but alsohostile witnesses presented by his co-Defendant.Witnesses against each defendantwere thus examined by one adversaryand cross-examined by anotheradversary. A fair trial was imposibleunder these inherently prejudicialconditions.Crawford, 581 F.2d at 492. The Court inCrawford noted that "because the evidencewas uncomplicated and only two defendantswere involved, the inconvenienceand expense of separate trials would not48 VOICE for the Defense / February 1987have been great." 581 F.2d at 492.Justice Goldberg of the 5th Circuit, inwriting in United States v. Romanela, 726F.2d 173 (5th Cir. 1984), perhaps statedthe problem faced by Defendant DEFEN-DANT 1 in this case more aptly than thiswriter can:. . .I saw a lizard come darting forwardon six great taloned feet andfasten itself to a [fellow soul]. . .[Tlhey fused like hot wax, and theircolors ran together until neitherwretch nor monster appeared whathe had been when he began. . .(foot-note omitted). . .The joint trial ofcot~spiracy defendants was originallydeemed useful to prove that the partiesplanned their crimes together.However, it has become a powerfultool for the Government to provesubstantive crimes and to cast guiltupon a host of co-defendants. In thiscase, we are concerned with thespecific prejudice that results whendefendants become weapons againsteach other, clawing into each otherwith antagonistic defenses. Like thewretches in Dante's Hell, they maybecome entangled and ultimatelyfused together in the eyes of the jury,so that neither defense is believedand all defendants are convicted.In this case, as in Romanela, the defensesdo not have to be actually exclusive, aslong as there is an irreconcilable conflictbetween the defenses of the two codefendants.726 F.2d at 178.It is not necessary for each defendantto base the core of his defense on thedirect accusation of his co-defendant.Severance may be required ifonly one defendant accuses theother, and the other denies any involvement.X.For a defendant to receive a fair trial isdifficult enough under the fiction thatjurieswill presume innocence, ignore the factthat [he Government of the-united Statesof America has accused an individual ofa drug crime, that the jury will set asideall the "king pin'' stories they watch everyFriday night on Miami Vice, and that thejury will really and truly follow the Court'sadmonition to put the Government to itsburden of proving each and every elementof the offense beyond a reasonable doubt.In the practicalities of "war in thetrenches," where attorneys do their best todefend citizens accused of crime, and haveto deal with the foibles of human nature,experienced criminal defense attorneyshave the knowledge that practically anyjuror, deep down, feels that somebody hasto be "a little bit guilty" or the Governmentwouldn't have everybody sitting in thestately courtroom before a solemn judgefor the trial of a defendant.That burden is great for an attorney toovercome in a normal case, to ensure thathis client receives his Constitutionallymandated right to a fair trial and to effectiveassistance of counsel. See Stricklar~d1. Waslti~~gtor~, 466 U.S. -(1984). Theburden of laboring under that fiction becomesinsuperable, and the rights of ourclient to a fair trial insupportable, when thedefendant must face two prosecutors-theattorney for the Government and the attorneyfor the co-Defendant. A just result, seeStrickland, will not occur when the co-Defendant becomes the chief prosecutionwitness against this Defendant, and whenthe jury becomes completely unable toview the defense of this Defendant in thelight of the evidence coming from all directionsagainst him.XI.A separate trial for DEFENDANT 1should not take more than a day or a dayand a half. Despite this Court's thoughtsthat judicial economy is best served by thejoint trial of co-defendants in a conspiracyprosecution, United States v. Sheikh, 654F.2d 1057 (5th Cir. 1981), in this case, asin Romartela, Salomon, Cra>vford, andJol~nson, a severance is mandated so thatthis Defendant will receive a fair trial anda just result, to which he is entitled underthe Sixth and Fourteenth Amendments tothe United States Constitution.PRAYERWHEREFORE, PREMlSES CONSI-DERED, Defendant DEFENDANT 1respectfully requests that this HonorableCourt sever his trial from his co-Defendant, DEFENDANT 2 FederalRules of Criminal Procedure 14(b).

Respectfully submitted,JOSEPH (SIB) ABRAHAM, JR.State Bar No. 008210009P.O. Box DEl Paso, TX 79951Tel: (915) 544-7860ARVEL (ROD) PANTON 111State Bar No. 16115170P.O. Box DEl Paso, TX 79951Tel: (915) 544-7860ATTORNEYS FOR DEFENDANTCERTIFICATE OF SERVICE:I hereby certify that on this 1st day ofDecember, 1986, I forwarded a true copyof the above and foregoing pleading to theOffice of the United States Attorney for theWestern District of Texas, El Paso Division,United States Courthouse, El Paso,Texas 79901.ARVEL (ROD) PONTON 111NO. F86-W0123-XNO. t86MX1124-XSTATE OF TEXASVS.11IN THE CRIMINAL DISTRrmCOURT NO. I OFDEFENDANT ll 1 DALLAS COUNTY, TEXASMOTION TO REOUIRE 7HF. PROSRCTTTOR 70 FOI.I.0IVTO THE HONORABLE JUDGE OFSAID COURT:COMES NOW, the Defendant NumberOne, by and through his attorney of recordand respectfully moves that this HonorableCourt require the prosecutor to follow therequirements of the Fourteenth Amendmentto the Constitution of the UnitedStates, Art. 1, sec. 19 of the Texas Constitution,and TEX. CODE CRIM. PROC.ANN. art. 2.01 (1981) in exercising itsperemptory challenges as guaranteed theState of TEX. CODE CRIM. PROC.ANN. art. 35.15 (1983). In support of thismotion the Defendant would show theCourt as follows:I.The Defendant currently stands chargedby indictment with the offenses of murderandlor aggravated assault of a Policeofficer. The Defendant is a member of theblack race.n.TEX. CODE CRIM. PROC. ANN. art.35.15(b) (1983) provided that the State ofTexas is entitled to ten peremptorychallenges in all- non-capital felonyoffenses. The offenses charged in the pendingcases are non-capital felony offenses.See TEX. PENAL CODE ANN. sec.37.03(b) (1974). A peremptory challengeis made to a prospective juror without assigningany reason therefore. TEXAS.CODE CRIM. PROC. ANN. art. 35.14(1966).In.Although the statutory provision concerningthe exercise of the peremptorychallenges is clear, this does not authorizethe State of Texas through its duly authorizedrepresentatives to exercise theirperemptory challenges in a racially discriminatoryfashion. Such would he inclear violation of other provisions of theTexas Code of Criminal Procedure, theTexas Constitution, and the United StatesConstitution. See: Batson v. Kentucky,U.S. - (April 30, 1986), 90LEd.2d 69 (1986), and 39 Crim. L. Rptr.3061 (April 30, 1986). 106 S.Ct. 1712.IV.The Fourteenth An~endmento the Constitutionof the United States guaranteesthat the accused citizen shall not bedeprived of his liberty without due processof law. Art. I, sec. 19 of the Texas Constitutionprovides that the citizen shall notbe deprived of his liberty without duecourse of law of the land. TEX. CODECRIM. PROC. ANN. art. 2.01 (1981)provides that it shall be the primary dutyof all prosecuting attorneys not to convictbut to see that justice is done.v.When the foregoing provisions are readin context of our society, it is clear that theState is precluded from using racial biasas grounds for selecting or excusing anyprospective juror. Such would be a clearviolation of the Constitution of the UnitedStates and the Texas Constitution and incontravention of the requirements placeupon the prosecuting authority by theTexas Code of Criminal Procedure. Theprosecuting attorney has a duty to assurethat a fair trial is had and that no prospectivejuror is removed from service becauseof some bias or prejudice for or against theaccused because of race.WHEREFORE, for the foregoing reasons,the Defendant respecthlly movesthat this Honorable Court 1) enter its orderrequiring the prosecution to use itsperemptory challenges in a racially nondiscriminatoryfashion in order to assureto the Defendant that he receives a fair trialas guaranteed him by the FourteenthAmendment to-the United States Constitution,Article 1, Section 19 of the TexasConstitution and TEX. CODE CRIM.PROC. ANN. art. 2.01 (1981); 2) conducta hearing at the conclusion of the strikeprocess hut before the trial jury is called,seated or sworn, to determine if the Court'sorder has been complied with; and 3) if theCourt determines that its order has beenviolated, that it quash the selected paneland require the calling of a new prospectivepanel and start the process over again.Respectfully submitted,ROGER F. JOYNER, ESQJAMES MURPHY, ESQ.PETER A. LESSER, ESQ.Attorneys for DefendantBY:PETER A. LESSERSTATE BAR NO. 12234500HICKS, GILLESPIE, JAMES& LESSER, P.C.One Mockingbird Plaza, LB 1271420 West MockingbirdSuite 760P.O. Box 47386Dallas, Texas 75247-0386ORDEROn this the day of October,1986, came on to be heard the foregoingDefendant's Motion to Require the Prosecutorto Follow the Dictates of the FourteenthAmendment to the Constitution ofthe United States, Article 1, Section 19 ofthe Texas Constitution and the TEX.CODE CRIM. PROC. ANN. art. 2.01(1981) in the Exercise of PeremptoryChallenges Provided to the State by TEX.February 1987 1 VOICE for the Defense 49

Jury Select ion -The Voice List ensby Robert B. HirschhomIntroductionThe challenge for cause is a potent toolin the criminal defense lawyer's arsenal.This precious resource is unlimited inquantity and statutorally guaranteed. Thischallenge must be employed and aggressivelypursued so that counsel is not forcedto use the limited peremptory strikes. Inany criminal litigation there are always ahandful of jurors who are ready to hangyour client without giving him the benefitof any doubt. In heinous or notorious casesthere are only a handful of good jurors.Thus, your mission is to excuse as manyprosecution jurors as possible by virtue ofthe challenge for cause. In a sexual assaultcase, Robert was able to exclude somenineteen (19) of thirty-six (36) venirepeoplesimply by using the causechallenge. Thechallenge for cause lays thepredicate for open dialogue between youand the jury panel and it will allow you theopportunity to intelligently and effectivelyexercise your peremptory challenges.Challenge for Cause ChecklistThe most litigious issue in jury selectionis the challenge for cause. An abundanceof cases are affirmed on appeal every yearbecause trial counsel neglected to make aproper record. To properly perfect yourchallenge for cause, counsel must do thefollowing:1) Make sure the court reporter is transcribingthe voir dire, including all benchRobert B. Hirschhom is a criminaldefense attorney with ofices In Houstonand Galveston, Texas. He has writtennumerous legal articles including EffectiveJury Selection Techniques and Jury Selection-A Trial Lawyer's Second GreatestFear.In 1985, Robert was a faculty memberat the National CriminalDefense Collegein Macon. Georgia. Additionally, Roberthas lectured on July Selection throughoutthe nation.conferences (when at the bench, wait foryour court reporter before yon commencemaking your record);2) Prior to questioning a particularvenirepersou, identify the reason($ whythe juror is subject to a challenge for cause;3) Ask the juror a sufficient number ofquestions to extract an unequivocal "causechallenge";4) Move to challenge the juror (do it atthe bench);5) State clearly and succinctly into therecord your reasons;6) State the applicable case law or statutoryprovision of Article 35.16 if possible;7) Obtain a ruling on your challenge forcause;8) Use a peremptory challenge on eachof your "cause" jurors;9) Exhaust all your peremptory challenges;10) Reguest an additional strike for each"cause" juror;11) State into the record that by overrulingyour challenge for cause, you wererequired to take an objectionable juror;12) State into the record that if you weregranted an additional peremptory strike,you would have used it against juror numbe r . who is seated on the jury panel.*Frank v. State, 688 S.W.2d 863 (Tex. Cr.App. 1985); OBryan v. State, 591 S.W.2d464 (Tex. Cr. App. 1979); Moreno v.State, 587 S.W.2d 405 (Tex. Cr. App.1978); Emanus v. State, 526 S.W.2d 806(Tex. Cr. App. 1975); Powers v. State,497 S.W.2d 594 (Tex. Cr. App. 1973);Johnson v. State, 713 S.W.2d 741 (Tex.App. Dallas 1986); Gonzales v. State, 706S.W.2d671 (Tex. App. 13thDist. 1985);Mnrray v. State, 689 S.W.2d 247 (Tex.App. 13th Dist. 1985);13) Make sure the record includes: a)master jury panel list; b) your peremptorystrikes, and, c) the list of strlkes for theState.Voir Dire Viewed in EntiretyWhenanalyzing the propriety of the rulingon the challenge for cause, the reviewingcourt will review the voir dire as awhole. Darden v. Wainwright, U S .-, 106 S.Ct. 2464 (1986); Frank v.State, 688 S.W.2d 863 (Tex. Cr. App.1985); Jernigan v. State, 661 S.W.2d 936(Tex. Cr. App. 1983); Everrv. State, 561S.W.2d 489 (Tex. Cr. App. 1978).For this reason, it is essential that thecourt reporter take down the entire voirdire, including conferences at the bench.Additionally, counsel should not rely ona single word or phrase used by the potentialjuror. Counsel must lock the juror intounequivocating answers and if appropriate,dictate into the record the demeanor of thejuror.Even if the record is properly made, theCourt of Criminal Appeals has, on occasion,refused to reverse the conviction inthe absence of harm or where the state hadnot exhausted all of its peremptorychallenges. Smith v. State, 683 S.W.2d393 (Tex. Cr. App. 1984) [no harm];Pearce v. State, 513 S.W.2d 539 (Tex. Cr.App. 1984) [State did not use all strikes];Weaver v. State, 476 S.W.2d 326 (Tex.Cr. App. 1972) [State did not use allstrikes]; Johnson v. State, supra atp. 744.Failure to state the reason why a juroris subject to a challenge for cause-no errorpreserved. Garcia v. State, 626S.W.2d 46 (Tex.Cr.App. 1981).Failure to designate the objectionablejuror(s) preserves nothing for review.Moreno v. State, 587 S.W.2d 405 (Tex.Cr. App. 1979); Adam v. State, 669S.W.2d339 (Tex. App. 13th Dist. 1984).However, error will be preserved eventhough counsel did not show in what mannerthe juror was objectionable, unfair orpartial. Wove v. State, 178 S.W.2d 274(Tex. Cr. App. 1944); Adam v. State,supra at p. 344.Art. 35.16 Is Not ExlzausliveAlthough Art. 35.16 lists the areas50 VOICE for the Defense / Februarv 1987

where a juror is susceptible to a challengefor cause, these grounds are not exhaustive.The trial court has the inherentauthority to excuse a juror for cause ongrounds other than those enumerated insaid Article. Moore v. State. 542 S.W.2d664 (Tex. Cr. App. 1976) ljuror preoccupiedby personal problems]; Henley v.State, 644 S.W.2d 950 (Tex. App. CorpusChristi, 1982) Ijuror's fear of losinghis job].Examples of Challenges for CauseTrial Courts Failure toTest Jrrror's QlralificafiorlsEdwards v. State, 660 S.W.2d 622 (Tex.App. 13th Dist. 1983)Trial court's failure to comply with Art.35.17 to instruct jurors in principles of lawwas waived in absence of an objection.Mental State Cl~allertgeBodde States 568 S'W'2d 344 vex.App. 1978)Juror had nervous breakdown monthsprior, hospitalized four months, givenshock treatment, expressed concern thatshe could not be good juror and if chosenand sequestered might relapse-court erredin granting state challenge for cause-noshowrng of absolute disqualification.Placing Burden of Proof on DefendantHornan v. State, 662 S.W.2d 372 (Tex.Cr. App. 1984)Potential juror's statement that theDefendant was "just a little bit guilty ofsomething" and it would take evidence toovercome this state of mind, it was errorto overrule challenge for cause.Goodmait v. State, 701 S.W.2d 850 (Tex.Cr. App. 1985)Brook v. State, 556 S.W.2d 309 (Tex. Cr.App. 1977)Court erred in granting State's challengefor cause on ground that juror could notread or write.He~?~andez v. State, 506 S.W.2d 884 (Tex.Cr. App. 1974)Requirement contemplates that juror beable to express ideas in writing.Prior Co~rvictiort DisqualificationFrame v. State, 615 S.W.2d 766 (Tex. Cr.App. 1981)Misdemeanor theft sufficient for absolutedisqualification.Payon v. State, 572 S.W.2d 677 (Tex. Cr.~pp. 1978)Felony DWI-successfully served outorobation term and been dischareed-not -absolutely disqualified to serve on juryseeArt. 42.12 Sec. 7, C.C.P.Frdly Develop Your Challenge for CauseWhen conducting your examination ofa potential cause excusable juror, it is imperativethat you construct the "causecoffin," confirm for the juror that yourespect hislher opinion, and then nail the"cause coffm" shut by anticipating theprosecutor's rehabilGtion and asking thatline of questioning iTa leadiug and closedendedfashion. Failure to askthe prosecutonrehabilitative questions could result inthe trial court thwarting your attempt tobringing the juror back around. Jol~~lsonv, 713 S,W,2d 741 (Tex, App,-Dallas 1986).Aquillo ,,, State, 710 S.W.2d 747 (Tex,App. Hou, 14th Dist, 1986)Examples of prosecutorial rehabilitationcan be found in the following cases: Joliilson11. State, sripra at p. 743; Gonzalez v.State, 706 S.W.2d 671, 672 (Tex. App.13th Dist. 1983).If the court refuses to allow you to furtherquestion a possible cause juror, ohjectand dictate into the record a fewconcrete and proper questions, Aqrriiio v.Stare, sripra at p. 752.ConclusionSpending some extra time with Article35.16 and the applicable case law can paybig dividends during jury selection. If youare able to convince the trial court to excludeajuror for cause, you have in essencereceived an additional peremptory strike.Let us share with you one war story thatis illustrativeof this point. We were recentlyworking on a capital case in Californiawhere our client was a Vietnam Vetcharged with executing a police officer.The defense was Post Traumatic StressDisorder. We had one strikeleft. The nexttwo jurors were pro-prosecution and thethird juror was a Vietnam Vet (who in ouropinion understood and empathized withour defense). Prior to exercising our finalstrike, we successfully pursuaded the triallawyer to vigorously and aggressivelymove to challenge one of pro-prosecutionjurors. The attorney took our advice, onejuror was excused, the other was struckand the Vietnam Vet was on the jury (after30 days of deliberations amistrial wasdeclared with the Vietnam Vet leading halfthe jurors to vote for second degree).The challenge for cause carries tremendousclout and can renovate the compositionof your remaining jury panel. Wewould again encourage you to share withus any thoughts, ideas, questions, case lawor challenge for cause stories. Your knowledge,experience and wisdom will help allof us he more effective. Please let us hearfrom you-THE VOICE LISTENS.Write: Jury Selectionc/o VOICE for the Defense600 W. 13thAustin, Texas 78701Ethicsconii,wedfion~ pop 46I declare under penalty of perjury theabove is true and correct.DateSignatureTO BE FILLED OUT IF POSSIBLE ATTHE TIME OF PAYMENTS MADEAFTER THE FIRST PAYMENTI have not been advised, counseled ormade any agreement with anyone from theLaw Offices ofthat isdifferent from what is written above andhave not been advised by them about howI should pay my legal fees, nor has anyonereceived any such advice on my behalf. Itis still my understanding that the LawOffices ofare notinterested in the manner in which I chooseto pay for legal services.I declare under penalty of perjury theforegoing is true and correct.DateSignatureFebruary 1987 1 VOICE for. the Defense 51

PERJURY AND OTHER FALSIFICATION aK h e was told car was not there. and when ~olice wentIn oeriuw oros it nd~~~~~~~~,insulf for failure to' prove' def knew statement's meaning.Tanner v S, 68144>626.Sec. 37.03 Aggravated Perjury(a) A person commits an offensand the false statement:(1) is made durina or inAThese Exceptional Research ToolsAre Used by Defense Attorneys, Prosecutorsand Judges Throughout Texas.1986 Editions Include All Amendments Passedat the Last Regular Session of the Texas Legislature.TEXASPENALCODEHANDBOOKTEXAS DRUGS & DWI HANDBOOKThis volume, now in its sixth year, is With full text of the Controlled SubstancesTHE ONE VOLUME ANNOTATEDAct, Dangerous Drugs Act, and DWIPENAL CODE. With full text and complete offenses, and complete annotationsAnnotations on the 1974 Penal Code, it has beginning with 500 S.W.2d, now in itsbeen praised by many lawyers as an fourth year. One defense lawyer wrote,exceptional research tool and a real "Your books are the best I have seen inbargain.20 years of practicing criminal law."-FINDING THE LAW IS QUICK AND EASY: This year's new format was developed to make the user's jobeasy. Every statute appears in boldface type to set it off from the case notes. Margin markers and arrangementof the case notes make research more efficient at pretrial, during trial and on appeal.COMPACT These Handbooks are designed to be carried with you to trial. With no sacrifice of completeness,all the information covered by each Handbook is in one compact volume. The Penal Code Handbookis THE one-volume annotated Penal Code, and for finding current case law it compares favorably with themore expensive multi-volume hardbound editions of the Code.THEAUTHOR. Lang Baker worked for Judge Wendell Odom of the Texas Court of Criminal Appeals for overa decade, and has seen first hand the need for books like these. He has spent much time making the TexasHandbook Series as useful as possible and is preparing another handbook covering Texas Criminal Procedure.-----------------------------------------------ORDER FORMqame Quantity Amount1986 TEXAS PENAL CODE HANDBOOK @ $40.00iddress 1986 TEXAS DRUGS & DWI HANDBOOK @ $25.00Xy, State, ZIPSend completed order to:Freelance Enterprises, Inc.7215 Creekside DriveAustin, Texas 78752Postage and Handlhg - $2.00 per bookSubtotalSales fax: Texas residents add 5.125%Austin Transit Meiro District residents add 6.125%TOTAL ENCLOSED

Letter to the Editor:It is wonderful to see the quality as well.as the quantity improvement in the Voicein recent months. Congratulations to all iuvolved.The member editorials especiallyoffer a great opportunity to all of us.Allen Ishell and I express our appreciationto Rusty Duncan for his assistance ingetting our "Hearsay" column started andto Kerry FitzGerald for his kind letter tous encouraging us to continue it. We wereregretfully unable to find the time andenergy to do so. The John Boston andNance Nelle column "In and AroundTexas" is not only the next best thing butalso much better. The Austin staff ofTCDLA has always been such a pleasure.We also found Allen ConnaUy at Artforms,the publisher of the Voice, in our limitedcontact with him, a patient relief.WALTER BOYDHoustonDear Editor:I am writing you about what appears tobe a major shift in the position of TexasAttorney General Jim Mattox on the issueof capital punishment as it isapplied in theState of Texas.On November 27,1986, Jim Manox andGovernor Tony Anaya were interviewedon the;ABC television program Nightlinefollowing Governor Anaya's commutationto a life sentence of all those condemnedto death in the State of New Mexico. Onthat program, Mattox made several remarkswhich I found nothing short ofremarkable. The general thrust of his positionseemed to he that capital punishmentis not accomplishing its deterrent effects.Mattox reinforced this position in the enclosednewspaper article from the ArrstinAmerican-Statesman, December 7. 1986,in which he stated that capital offenseshave not decreased as a result of resumptionof executions in the State of Texas.On Nightline, Mattox went on to say that,in his opinion, there were probably a num-ber of persons on death row whose sentencesshould be commuted.This television interview was as remarkablefor the things Mattox did not say asfor those which he did say. He did not takeany position in defense of Texas' capitalstatute; he did not make any statement tothe effect that he or his agency is eager tosee executions conducted in a speedy manneror without a full opportunity for completejudicial review; overall, his positionappeared to be very conciliatory to that ofGovernor Anaya to the great surprise ofthe interviewer.I understand that Attorney General Mattoxhas again appeared on television in thelast week making additional statementssimilar to those made on Nightline. Thissubsequent appearance may have been onCNN on December 5, 1986.In the spirit of the recent Viewpoints articleby Jim Bobo in the November issueof Voice for tlze Defense, in my opinion,this is an occasion when Attorney GeneralMaUox should he commended for his positionon this issue and encouraged to pnrsuethe idea that capital punishment is nota deterrent to capital offenses, but, in fact,diminishes both respect for life and themoral authority of the State. This may indicatea "window of opportunity" whichTCDLA should not miss during this upcominglegislative session.Sincerely.JULIE C. HOWELLAustinHUNTSVILLE (AP) -When convictedkiller Charlie Brooks was executed in1982, an anonymous note passed alongTexas death row predicted executionswould become routine. Four years later,the state leads the nation in executions.Brooks' execution was the first in the nationby lethal injection and ended an18-year moratorium on capital punishmentin Texas.Today is the fourth anniversary of theexecution of Charles Brooks, Jr., 40, whowas put to death for the 1976 killing ofDavid Gregory, a Fort Worth car lot employee.The execution of Michael Wayne Evansof Dallas on Thursday brought to 19 thenumber of those put to death since 1982.To some Brooks' execution sent a messageto criminals."It broke the logjam," saidPaula Offenhauser,an assistant attorney general whohandles death penalty litigation. 'lt toldTexas, the courts and attorneys that thissentence will he carried out and that thestate will actively seek to enforce it."Others see it differently.'lt opened a dangerous gate throughwhich we have entered a fantasy laudwhere we are cheapening human life bysentencingpeople to death," said Ray Hillof Houston, an ex-convict and friend ofBrooks."States like Texas, which seems to takegreat pride in its executions, demonstratethat, like Mr. Evans, they also believe thatthe killing of a human being is an acceptableanswer to some problems," said HenrySchwarzschild of the national AmericanCivil Liberties Union office in New York.'They demonstrate they have a profounddisrespect for human life."In the four years since Brooks' execution,Offenhauser and a team of attorneysworking for Attorney General Jim Mattoxhave speeded the process by wmning courtrulings cutting legal delays.The rulings streamlined the appealsprocess and eliminated procedural tacticsdefense attorneys used to delay executionsindefinitely.Brooks' execution was followed by thoseof Ronald Clark "Candyman" O'Bryan andJames D. "Cowboy" Autry. As each onewas put to death, the executioner fumbledwith the mix of lethal drugs, sometimes notusing enough, resulting in slow deaths.Evans appeared to drift to sleep Thurscmtirraedon pnge 55February 1987 1 VOICE for the Defense 53

A View From the BenchCorrect ions Cafeteriaby Judge Lariy GistIn times long since past, punishment wasreally a very simple part of the proceedingsin a criminal prosecution. In fact, justhow simple is really reflected in a readingof the Texas Penal Code of 1836.As we all know, our present code covers5 volumes. The Code of 1836 consumedall of 9 pages, and prohibited almost thesame types of conduct condemned bypI'eSent law. But it was thepunishmentpro-v~sions that so remarkedly separated thatcode from our own.All of the major felony offenses werelisted: murder, arson, rape, robbery, burglaryand being a party to such offenses.The punishment upon conviction was alwaysthe same-death. The code containedno 'less than" or "more than" language; noprobation; no deferred adjudicationnothingbut death was available.Only the offense of felony theft left someremnants of discretion. For one convictedof theft "shall restore to the owner thegoods, chattels, money or other article ofvalue so stolen, or pay the value thereofto the owner, and shall receive 39 lasheson the bare back and be branded on theright hand with the letter T.'"In the next 150 years, our law had developedat such a pace that in many instancesit is now in the punishment phasethat enormous legal skill is required justto know the rules of the game. We presentlyhave so many punishment options availableand each one has its own technicalrules that if not followed, eliminates theoptlon from consideration.The attorneys and the judge or jury involvedin a punishment proceeding arenow given a wide array of possible punishmentchoices. I thought it might be helpfulto outline most that I've been able tofind. Perhaps this punishment menu willhe of value as all of us attempt to formulatewhat options are available in particularcases. An entire article could be writtenon each option, but perhaps a summaryreview can at least direct an interested advocateor jurist in the proper generaldirection.Sees. 3.01-3.03 PC. Joinder of Prosecufions.In the eircu~nstances covered bythese sections, provision is made that in thetrial of two or more joined offenses, thepunishment must run concurrently in theevent of conviction. The fear of a "stacked"sentence does not arise too often, but whenit does, careful counsel should take a closelook at seeking joinder.Sec. 12.42 PC. Repeat Offender &Hnbihml Offender. As we all know, enhancementallegations if properly provedmagnify the available punishment range.So defense counsel is always wise to closelyexamine the viability of the underlyingconviction(s). There are a number of availableways to properly attack what appearsto have been a valid prior conviction. Thusif that attack is successful, the penaltyrange is reduced.See. 12.44 PC. Reduction of 3rdDegree Felony to MZsdetneanor. Allcourts have jurisdiction when "after conslderingthe gravity and circumstances ofthe felony committed, and the history,character and rehabilitative needs of thedefendant, so set aside the verdict and convictand punish for a Class A misdemeanor.The court can also authorize theprosecutor to proceed for a Class A mis-demeanor rather than 31d degree felony.Sec. 12.45 PC. Admission of UnadjudicatedOffense. With the consent of theprosecutor having jurisdiction over a case,the defendant can admit guilt to cases forwhich be has not yet been prosecuted. Thecourt can take such offenses into considerationin assessing punishment in the pendingcase, but doing so prevents theadmitted offenses from ever beingprosecuted.Arts. 37.08-09 CCP. Lesser IncludedOffe~zses. In the proper case, and defendantmay well beguilty of a lesser offensethan that alleged against hi. And ofcourse conviction of the lesser grade alsoexposes the defendant to a reduced penaltyI range.Art. 42.08 CCP. Cu~nulative or ConcnrrenfSentences. Courts have inherentauthority to "stack" sentences. With fewexceptions, cumulation is a matter of judicialdiscretion, and if done in a technicallycorrect manner, there is little defensecounsel can do. It is always important toat least realize this judicial authority existsand be prepared to argue for concurrenttime. Note though that our lawprovides that unless cumulated, terms runconcurrently. Sometimes it's best just to letsleeping dogs sleep.Art. 42.03. See. 4. CCP. Shews ConductStatefnent. When a prisoner is sentto TDC, the sheriff is required to attacha statement of the prisoner's conduct whilein jail. That statement is used to award thesame good conduct credit the prisonerwould have earned had he been in TDC.So always check the committment papersto make sure a good conduct statement isattached. Its absence may lengthen theprisonerk stay.Art. 42.03, Sec. 5. CCP. Off Work JailSetttence. Ifjail time is awarded, the Couahas discretion to allow its service duringoff work hours. There are a number ofconditions that may be imposed, and oftensome local practical problems. But in theright circumstances, use of this option willallow an offender to keep his job while54 VOICE for the Defense / February 1987

serving his time. It also allows restitutionto be collected and the prisoner is requiredto pay his cost of confinement so that thetaxpayers get a jail sentence for free. It'salways worth a look.Art. 42.03. See. 6a. 3rd Degree FelonyServed in Jail. This section authorizes acourt to allow a defendant convicted of a3rd degree felony to serve the term in thelocal jail. Work release is then required.The process cannot be used however, withoutthe consent of the State. And withcrowded local jails, probably few prosecutorswould be interested. But don't passit by without a look. In the right case andcircumstances, this may well prove a viablealternative.Art. 42.12. Sec. 1Oa. Pre-Trial Diversion.This section authorizes the court toallow the probation department to supervisedefendants sent them directly by theprosecutor. Basically, the prosecutor anddefendant strike a deal PRIOR to prosecution.In effect, the defendant is on probationto the prosecutor. If he does whatthe prosecutor desires, no case is filed. Ifhe violates his agreement, the prosecutorcan proceed with the case. The probationdepartment is authorized to collect up to$200 for supervision. Few jurisdictions usethis tool. But in the right circumstances,it can accomplish exactly what a fullcourtproceeding can accomplish at signiticantlyreduced cost. As must judges and prosecutorsare unaware of this provision, mentioningit may be beneficial for everyone.Art. 42.12. Sec. 3e. Court GrantingProbation When Jury Doesn'f. As a practicalmatter, few judges would grant probationwhen a jury has refused it. But inthe right case, it may be a useful optionto at least mention. Many judges do notrealize they have the authority to grant probationin eligible cases when a jury doesnot.Arf. 42.12. Sec. 3d. Deferred Adjudication.This is a classic two-edged sword.On the one hand, someone who successfullycompletes deferred probation ends upwith no conviction on their record. On theother hand, violation of the terms imposedsubjects him to the full range of punishmentand the revocation proceeding is notappealable. This is perhaps the most dangerousand useful tool in the book. Approachit carefully.Art. 42.12. See. 3.9. Shock Probation.Courts are given jurisdiction depending onthe grade of offense to rehlrn a prisoneror inmate to court and suspend furtherservice of the sentence. Always read thissection closely because there are a numberof exceptions and requirements. If thisoption is used, the Court is authorized toplace the defendant on probation for themaximum authorized for the offense.Many inmates may prefer to await parolerather than be under court supedsion.Art. 42.12. Sec. 3fl. Jury Verdict-Affirmdive Finding. If a defendant is convictedof a 2nd degree or higher offenseand is given probation by the jury, theCourt is authorized if it makes an affirmativeweapon finding to confine the defendantin TDC for a term of between 60-120days as a condition of probation.Art. 42.12. Sec. 4. Pre-SentenceReports. The PSI is perhaps the most importantdocument in a defendant's life. Itwill follow him everywhere he goes in thesystem. Therefore it is crucial to insure itis accurate. If probation is granted, it stayswith the court for review when alleged violationsare reviewed. If the defendant goesto TDC, it is used in making classificationand parole decisions. So make sure whatis in the final document is correct. It is awfuldifficult to get a correction made onceit is introduced into the system. It is alsoa useful tool to counsel to get beneficialinformation before the cou~without witnesseshaving to take off work or be otherwiseinconvenienced. Generally, the rulesof evidence do not apply, so be careful.The same latitude that allows you to getinto the report beneficial information alsoallows the prosecutor to do the opposite.Arf. 42.12. Sec. 6. Conditions of Probation.Great latitude is allowed the courtin setting conditions of probation. In fact,anything is authorized so long as the conditioni8 "reasonable." One of the best waysto convince a court into giving probationis to outline the rehabilitative restrictionsthat can be imposed.Art. 42.12. Sec. 6ba. 30 Day PenalTenn Condition. The statute specificallyauthorizes the court to impose a 30 dayterm in a penal institution as a conditionof probation.Arf. 42.12. Sec. 6bb. DWI Jail Time.Recent legislation provides that undercertain circumstances a person receivingprobation for DWI or DWI NegligentHomicidemay be required to serve a specifiedminimum time incarcerated.Art. 42.12. Sec. c. Restitution Center.If a jurisdiction is served by a RestitutionCenter, in appropriate cases an offendercan be ordered confined in the center asanalternative to prison. There are substantialtechnical requirements and exemptions,so read the statute carefully. In theproper case, its a great option because theoffender is required to work, pay restitutionand housing costs, and eventually hetransferred to regular supervision.Art. 42.12. Sec. 7. Early Release. Thisprovision authorizes a court to release aprobationer from supervision afler he hassuccessfully served one third of his term.Note that under deferred adjudication provisions,release can occur at any time.WOW!!! What a bunch of options, andthe surface has hardly been scratched. Toomany of us take punishment in stride, anddo not really prepare to face the incrediblelist of alternatives. The next time youpass your tray down theline at the correctionscafeteria, remember the variety that'savailable. No longer is there one optiondeath.And no longer need you fear brandingwith the letter "T" or receipt of 39 lashesto the bare back. But you're also not justfaced with a prisonlprobation decision.No, things are much more complicatedthan that. The menu has been expanded sowe can feast on a banquet of justice.Letterscrmrinucdjronz page 53day, dying painlessly from the executioner'srefined mix of drugs.The early executions received nationalattention when mobs of college studentsgathered outside the execution chambersto chant support for their deaths.Far less attention focused on Evans, convictedof killing an East Dallas church pianistin 1977. Six reporters attended, downfrom the 300 at Brooks' execution.State off~cials predict executions will becarried out monthly next year as about twodozen death row inmates exhaust theirappeals.But as the executions increase, manywonder if they made a difference."With capital punishment, one wouldsuspect the number of such cases (warrantingthe death penalty) would diminish withtime," said Mattox. "I haven't seen themdiminish."February 1987 / VOICE for the Defense 55

Inasmuch as Texas law confers on aDefendant the absolute right to jury assessmentofpunishment, it stands to reason thatcounsel for both sides are entitled to arguefor and against a particular sentence.This article will offer some guidelines forthe permissible scope of such argument.Guilt/Innocence StageAs a general rule, remarks concerningsentencing are not proper at the guiltfinnocencestage. ("Guiltlinnocence stage'' is adescriptive phrase peculiar to defense attorneys.Those of us who are formerprosecutors will recall that we thenreferred to this as the "guilt stage.") Thetheory is that such remarks serve no legitimatepurpose since the jury's sole functionat this phase of the trial is to decide thequestion of the Defendant's guilt. Ofcourse, in all likelihood the jury bas beeninformed as to the appropriate range ofpunishment during the voir dire examination,so the harm lies in attempting to letthe potential pun~shment interfere with thejury's resolution of the factual issues in thecase. In spite of this prohibition, commonsense should tell us that some (or maybeall) jurors will undoubtedly consider therange of punishment while deliberatinggu~lt. If there is areasonablelikelihood thatthe jury will receive an instruction on alesser included offense, defense counselshould consider not informing the jury ofthe range of punishment prescribed for thatlesser offense. Jury nullification can cutboth ways and on a murder case a jurymight well reject a lesser offense of involuntarymanslaughter if they were madeaware of the relatwely light punishment forthat lesser crime. Larry and Pam Mooreof Fort Worth employed this tactic withgreat success in a recent highly-publicizedtrial in Tarrant County. Of course, whenthe jury found out that they could only sentencethe defendant whom they had justconvicted of manslaughter to twenty years,they were not amused. Pam and Larry arein hiding at this writing.Even if the jury is aware of the differ-56 VOICE for the Defense /February 1987The Last WordArgument Concerning Non-Capital Sentenceby Jack V. Sfricklandence in potential punishments, the prosecutorcan commit error by repeatedlystressing that difference and asking the jluyto consider the amount of punishment,rather than the facts, in determining theoffense for the defendant should be convicted.In McCke v. State, 544 S.W.2d390 (TCA 1976), the court held that suchargument could only inflame and prejudicethe minds of the jurors, diverting themfrom their legitimate task. Every suchmention is certainly not improperhowever, as it may be construed as nomore than an explanation showing thecommission of one offense rather thananother. McM111len v. State, 659 S.W.2d455 (Tex.App.-Dallas), (PDRR). Andjust as it is improper for the prosecutor toargue that an erroneous conviction is notreally harmful "since it can be reversed onappeal," Crowv. State, 26 S.W. 209 (TCA1894) by analogy it should be error to arguethat an erroowus conviction of themore serious offense can always be remediedby the appellate courts.Sentencing StageGetteralAlejandro, still the bright-line jury argumentcase in Texas, tells us that a properplea for law enforcement is one of four approvedcategories of argument. Alejandrov. State, 493 S.W.2d 230 (TCA 1973).Since proper sentencing directly relates tothe question of law enforcement, it followsthat the district attorney may argue sentencing.Accordingly, it is proper to arguethe general purposes of sentencing, includingdeterrance, retribution, and quarantine.The familiar "send a message" refrain ispermissible, whether the intended recipientis the community, the penitentiary, thedefendant, or others of his ilk. Conversely,of course, the bleeding-heart defensecounsel is entitled to argue in favor of rehabilitation.A prosecutor may point out,if supported by the facts before the jury,that a long penitentiary sentence is tantamountto "self defense" for the communityat large. Texas case law goes so far as toallow attorneys to make sentencing recommendationsof specific terms of years, supportingthose "recammendations" withevidentiary reasons. See Palmer v. State,423 S.W.2d323 (TCA 1968). In that casethe prosecutor agreed that the defendantcould possibly berehabilitated, but only ifthe State had 99 years to workon it. Probablyoverly optimistic at that. Keep in mindhowever, the very strict Texas rule whichprohibits the prosecuting attorney from arguingthat the community "expects" or "demands"a particular outcome. The linebetween what is a permissible appeal tocommunity rights and an impermissibleargument or community expectation,demand, conscience, or desire is oftendifficult to draw. It is not enough to implythe expectation; the argument must be explicit.Cain v. State, a 1977 Dallas murderwith malice prosecution, is a case inpoint. The defendant, a Dallas policeofficer, attempted to interrogate a handcuffed12-year-old boy by holding arevolver to the child's head. The gun discharged,with predictable results. At thesentencing phase of the trial, the prosecutorresponding to a defense plea for probation,asked the rhetorical question "whois to answer for the death of Santos Rodriquez?You? Me? The community at large?"That argument was held to be a proper pleafor law enforcement and was an attemptto point out that the defendant bore the soleresponsibility for the death of the child.Cain v. State, 549 S.W.2d 707 (TCA1977).Using that same reasoning, the CorpusCbristi Court of Appeals found the followingargument to be directed to the responsibilitiesof our court system, not tocommunity expectations:'We've taken you six as representatives,and it's your job to determinewhat is the proper punishment. . .what's the point of bringing in thisguy that's DWI before a jury?. . .people who have lost others throughDWI feel very strongly aboutthat. . ." Moreno v. State, 678

S.W.2d 249 (Tex.App. -CorpusChristi 1984) (PDRK).Perrrrissible FactsTexas law allows thejury to consider allof the evidence heard at the first phase ofthe trial when deliberating the issue ofpunishment and thejury will be instructedaccordingly. See, McClung, Texas J1ayCharges (1985). Additionally, facts concerningthe Defendant's prior criminalrecord, or lack thereof, psychological testimony,character evidence, as well as anythingelse properly before the jury are aproper subject of argument. Even the lackof certain evidence may be argued, as longas the prosecutor does not speculate as towhat those absent witnesses would say.Accordinglv, it is ~erfectlvacceotable forthe State Tipoint out thatneither family,friends, employers, ministers, or formercell-mates had come forward to providecharacter testimony for the defendant.Spencer. v. State, 466 S.W.2d 749 (TCAthe going rate. . .three separate robberies.. . ten years each robbery.''Br.o~un v. State, 530 S.W.2d 118(TCA 1975).or (yes, you guessed it), Dallasagain:"How many more years would youtack on somebody that would takepecan shells and put them on thefloor and hogtie his daughter. . .andmake her kneel on the broken shells?how many more years would youndd on for that?" Lmas v. State, 707S.W.2d 556 (TCA 1986).ParoleThe long-standing Texas rule which prohibitedprosecutorial comments regardingparole supposedly fell by the wayside withthe passage of the 1985 amendment to theCode of Criminal Procedure. TEX. CODE1971). This is true even over objection that CRIM PROC ANN., Art. 37.07(1985).such comments improperly shift the bur- That article sets out a mandatory instrucdenof proof to the defendant. But in tion to be included in the jury charge, in-McKenzie v. State, 617 S.W.2d 211 (Tex. forming non-capital jurors that a prisonerCrim.App. 1981) and in Revson 11. State, may earn good-time; that an inmate be-706 S.W.2d 153 (Tex.App. -Houston 1st comes parole-eligible at the expiration of1986), the prosecutors went overboard and '/; or 20, including that good-time; and aloutsidethe record, causing each case to be lowing the jurors to consider the existencereversed.of the parole law and good conduct time.More often than we like, the state is able Then, with what niust have been a goodto bring evidelse of extraneous offenses deal of smirking, the legislature goes onto the attention of the jury. In fact, in many to insist that of course the jury is not tocases, the State is ahvays able to introduce consider the manner in which the paroleevidence of extraneous offenses. Those are law might be applied to this particularcertainly proper subjects of prosecutorial defendant. Right.argument, but only to the degree that they Obviously if the mandated instruction ishelp prove the specific purpose for which submitted, the prosecutor may be temptedthey have been admitted: intent, identity,system, desigd, scheme, etc. However, theprosecutor is not entitled to ask the juryto assess punishment for the collateralcrimes which may have been admitted inevidence and then add such punishment tothe penalty assessed for the offense allegedin the indictment. Klrreppel v. State, 505S.W.2d 572 (TCA 1974). By way of example,Dallas District Attorney's Office,showing more familiarity with basicmathematics than with the law, argued ina robbery case in which two extraneousrobberies were admitted into evidence:'Tm not asking for more than whatit's worth. Thirty years, why? That'sJaye Thompson, RPRCSR # 768AUSTIN COURT REPORTERS41 13 MARATHON BLVD.AUSTIN, TEXAS 78756(51 2) 452-0621to argue the matter before the jury. I believethis argument to be objectionable andgrounds to justify reversible error. To buttresssuch a contention on appeal, it wouldbe very helpful to secure the affidavit ofone or more jurors to the effect that theprosecutor's argument caused the juror toapply the "parole mathemalics" in thecourt's charge and to increase the sentencefrom that originally contemplated.If the Statute is unconstitutional, it followsthat arguments made in support of thecharge must necessarily be reviewed inlight of the pre-1985 Texas case law. Thatcase law clearly held that it was improperfor the prosecutor to urge the jury to applythe parole law in assessing punishment.("You should, in deliberating as to punishment,discuss how long the Defendantswould be required to serve in order tosatisfy the sentence imposed.'') Woerner I,.State, 576 S.W.2d 85 (TCA 1979). Thereading of the parole law, albeit the wrongparole law, was held to be reversible inKincaid v. State, 534 S.W.2d 340 (TCA1976), and even implied arguments concerningparole have deen condemned.In a 1982 Dallas (!) case the prosecutorclearly invited the jury to consider theparole law during it's deliberations by thefollowing not-so-clever (in retrospect) subterfuge:"One thing I might want to pointout. . .he was sentenced to 16 yearsin the Texas Departmeut of Correctionsand hetold you that he servedsix years." Kearney 1,. State, 630S.W.2d 934 (TCA 1982).Note however that some courts have al-AUSTIN DALLAS HOUSTON SAN ANTONIOFebruary 1987 / VOICE for the Defense 57

Ilowed the State to skirt the narrow borderlinebetween a fair summation and theprohibited invitation to consider paroleIlaw. See Turnerv. State. 695 S.W.2d 254(Tex.App.-Houston (1) 1985). Kearneyn V. State, 630 s.w.zd 934 (TCA 19821.What will happen when the Court ofCriminal Appeals considers the questionof the statute's constitutional~ty is any-Ibody's guess. An earlier conflict betweenthe Fifth Court of Appeals (Dallas), whichhad found the law to be unconstitutional,and the Second Court of Appeals (FortWorth), which upheld the law, wasresolved in December. On rehearing, theDallas Court, sitting en banc countermandedthe 3-justice panel which hadstruck down the law in August. Stay tuned.ProbationIf the question of probation is properlybefore the jury, attorneys for both sides areallowed some latitude in stating personalviews as to whether probation should orshould not be granted. That is in spite ofthe general prohibition against counsel interjectingtheir personal opinions into finalargument. In the Atwood case, the prosecutor,although not from Dallas, arguedthat"If Ifelt that this was the type of casethat deserved to be probated, thenwith the Court's permission thatcould have been done. . . The Legislaturedid establish the right of probationand established it in theproper cases, probated (sic) deservedto be of young people, people whoare seventeen and twenty-two.. ."Although this argument (1) interjects newevidence in the form of personal opinion,(2) is a misstatement of the law, and (3)stupid, it was held no proper objection hadbeen made, it was probably not manifestlyharmful, and most importantly, the issuewas moot inasmuch as the jury hadreturned a sentence in excess of ten years.Atwood v. State, 537 S.W.2d 749 (TCA1976). See also, Levingstorr v. State, 651S.W.2d 319 (Tex.App.-Dallas 1983)(PDRR).Since it is improper to invite the jury toIgnore its lawful function k any regardfiust be guided by what Jesus would sayabout your verdict"), so too is it improperto suggest that the jury ignore its responsibilityto consider probation if probationis indeed an issue. In Blount v. State, 509S.W.2d 615 (TCA 1974). the prosecutortold thejury that it need not concern itselfwith the question of probation since thejudge could grant it. That comment, askingthe jury to abandon its lawful responsibility,to assess a fair punishment basedon the evidence, was held to be reversible.A more recent case, embodying thelogic of Blount is Clark v. State, 643S.W.2d 723 (TCA 1982), a case from thehome of the Cotton Bowl.ConclosionKeep in mind that while there are somespecial do's and don't's for sentencing arguments,the general rules which governjury arguments still apply. Counsel shouldnot argue matters not in evidence andreasonable deductions must be drawn. Tntemperateremarks by defense counsel mayopen doors best left locked. It is no moreproper for a prosecutor to comment upona defendant's failureto testify at the secondslagc than it is at thc first. And as always,the ridiculous three-mart litnnv , recniired . ofTexas lawyers (objection, instruction, motionfor mistrial), taken to an adverse mling,is applicable at the sentencing phase.With any luck all of your cases will beresolved at the first phase and you willneed not concern yourselves with sentencingarguments.Search and Arrest Warrantscowitwedfronz page 33ble under Art. 38 23, supra); Irvh v. State,563 S.W.2d 920 (Tex. Cr. App. 1978)(evidence obtained in violation of Chapter14, V.A.C.C.P., was inadmissibleunderArt. 38.23, supra); and kighto~~ v.State, 544 S.W.2d 394 (Tex. Cr. App.1976) (similar to Inm, supra). Thus, ifevidence is obtained in violation of anystake or federal statute, or constitutionalprovision, then the evidence is not admis=sible at trial.Invalid search warmrrtsIf asearch warrant is not valid, then thesearch is not authorized and any evidenceobtained from that search may be inadmissible.Art. 38.23, V.A.C.C.P., Wong Sun,supra. The actual procuring of a warrant,however, does not preclude the use of exigentcircumstances to justify a searchshould the warrant fail. Adkins v. State,- S.W.2d - (Tex. Cr. App. No.1064-84, delivered October 1, 1986),Stoddard, supra, and Lowag v. State, 499S.W.2d 160 (Tex. Cr. App. 1973). Thus,if a warrant is determined to be defective,then the evidence may still be admissibleif the circumstances surrounding the searchsupport some exception to the warrant requirement.Adkins, supra. Seealso UnitedStates v. Clark, 559 P.2d 420 (5th Cir.1977).New Motionsmnrinaedfio~n page 49CODE CRIM. ANN. art. 35.15 91983)and the same is hereby (GRANTED inthat: a) the prosecution is ordered that itshall not use its peremptory challenges ina racially discriminatory fashion; h) a hearingshall be ordered at the conclusion ofthe strike process and prior to the calling,seating or swearing of the jury to deter-mine if the Court's order has been compliedwith; and c) any further action thatthe Court deems necessary to enforce itsearlier rulings, to wit:(DENIED, to which action of the Court,the Defendant duly excepted.)JUDGECERTIFICATE OF SERVICEI hereby certifiy that a true and correctcopy of the above was hand delivered toAssistant District Attorney, or his dulyauthorized representative on October 9,1986.BY:Peter A. Lesser58 VOICEfor the Defense / February 1987

In and Around Texasby John BostonBy the time this column sees print youshould either he preparing for the TCDLAwinter meeting in Lake Tahoe or justreturned from that trip. The TCDLAlCDLP staff members hope that the tripwas, or will be, fun, informative andmaybe even profitable, or not too unprofitable.CLE Update: March 16-20 are the datesfor the l lth Annual Criminal Trial Advocacyprogram conducted by the CriminalDefense Lawyers Project. Bill Whiteof White & Allison, P.C., Austin, is thecourse coordinator again this year. In thepast, Bill has done an excellent job of puttingtogether the four and one-half day trialpractice program, and he can be expectedto produce another excellent program forcriminal defense lawyers. The Project willproduce two programs in the month ofon the 10th and a day and one-half StateLaw Skills Course in Tyler on April 23 and24. Check your mail for brochures inMarch.TCDLA Insurance Program: We areagain requesting information so that an uoderwrilermay prepare quotes for reducedpren~ium malpractice insurance for itsmembers. If you are a member, answer thefollowing questions on your letterhead andreturn to John Boston, 600 West 13thStreet, Austin, Texas 78701. We need a50 percent response from TCDLA membership.I. Name of firm, address, and phone.2. Number of attorneys in your firm.3. Number of years experience as an attorney.4. Please give a percentage of the tuneutilized on cases, i.e., plaintiff or defense5. Please attach your loss experience,premium and insurance company for lawyers'errors and omissions coverage For thepast (5) years. Is your current policy writtenon a claims made or occurrence form?If you are interested in the Paul RevereDisability Insurance Program contactMaury M. Burkom, (512) 340-6318 orThe Paul Revere Companies, RenaissancePlaza, Suite 310, 70 NE Loop 410, SanAntonio, Texas 78216. There is apremiumdiscount for TCDLA members.Don't forget if you have information youwould lie to see printed in this space, sendit to "Tn and Around Texas," Kerry P. Fitz-Gerald, Editor, Voice for the Defense, c/oTCDLA, 600 West 13th Street, Austin,Texas 78701.Recru~t a new member; it'll do you bothgood.Open your eyes and see just howmany subjects are covered in the newedition of the Consumer lnformationCatalog. It'sfree just for the asking andso are nearly half of the 200 federalpublications described inside. Bookletson subjects like financial andcareer planning; eating right, exercising,and staying healthy;housing andchild care: federal benefit programs.Just about everything you would needto know. Write today. We'll send you thelatest edition of the Consumer InformationCatalog. which is updated andpublished quarterly It'll be a greathelp, you'll see Just write:Consumer lnformation CenterDepartment TO, Pueblo, Colorodo 81009U.S. General Services AdministrationFebruary 1987 1 VOICE for t/-

-ITEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION600 West 13th StreetAustin, TX 78701(RETURN POSTAGE GUARANTEED)r"""'-"""""'""-""""1IIIII TEXAS CRIMINAL DEFENSE LAWYERS :II ASSOCIATION IIII MEMBERSHIP APPLICATION II(Please print or type) INEW MEhtBER APPLICATIONRENEWAL APPLICATIONNAME(To appear m Membership Directory)MAILING ADDRESSCITY STATE - ZIPBUSINESS TELEPHONE (-)TELECOhlhlUNICATIONS ACCESSIBILITYY E S N O -TELECOhlMUN1CATIONS PROTOCOL-N/A_BAR CARD NUhlBERNAME(As recorded on State Bar Card)TITLE FOR SALUTATION:II(htr.)(hln.)(Ms.) IBAR DATE: Xontb YearIIIPROFESSIONAL ORGANIZATIONS: (Curreal)CountyIIStateINatlonalIIAREAS OF SPECIAL INTEREST IN CRIhtlNAL :LAW (Cert~ficatmn not reqwred)IIIICERTIFIED CRIMINAL SPECIALIST. IIY E S NO-IIRESIDENCE TELEPHONI: (-1IIIHave yo11 cvcr been di.$barred or disciplincd by any:bar association. or are you the subject of disciplinary Iaction now pending? !Date(Signature of Applicant)ENDORSEhlENTI, a membcr of TCDLA, believe this applicant to be aperson of professional compelcncy, integrity, andgoad moral character. The applicant is actively engagedin the defense of criminal cases.Date(Signalum of Member)(Print or Type Member's Name)iIII1itIIIIIIIII1 I!65 2f@a ~iminal Defense Lawyers Association600 West 13th Street IAustin, Texds78701I(512)478-2514 IISome of the best legal minds.. .in this state already belong to the Texas Criminal DefenseLawyers Association. We believe we have now the best Criminal~efense Bar in the United States. We maintain that levelof excellence by continuously seeking out new minds, newenergies. Therefore we want YOU. .if your legal and personalphilosophies are compatible with our purposesandobjectives:a To provide an appropriate state organization representing thoselawyers who are actively engaged in the defense of criminal cases.To protect and insure by rule of law those individual rightsguaranteedby the Texas and Federal Constitutions in criminal cases.To resist proposed legislation or rules which would curtail such rightsand to promote sontld alternatives.0 To promote educational activities to improve the skills and knowledgeof lawyers engaged in the defense of criminal cases.To improve the judicial system and to urge the selectionand appointmentto the bench of well-aualified and exoerienced lawvers.To improve the correctional system and to seek more effectiverehabilitation opporlnnities for those convicted of crimes.0 To promote constant improvement in the administration of criminaljustice.ADVANTAGES FOR TCDLA MEMBERSThe monthly Voice for llre Defense magazine.The "Significant Decisions Report" of important cases decided by the Texas Court ofCriminal Appeals and the Federal Courts.TCDLA'Membwship Directory-referrals to and from Criminal Defense Lawyers inover 100 Texas cities.Outstanding educational programs-featuring recognized experrs on practical aspeclsofdefensecascs. TCDLA and the SLaleBar mudly present many seminars and cmesin all paes of the state.BriefBank service.Availability oiLawyers Assistance Committee, a ready source of information and assistanceto members, and the Amicus Curiae Committee.The Attorney General's Crime Prevention Newsletter. Summaries of latest Texas Courtof Criminal Appeals cases avdilable to private practitioners only through TCDLA'sgmup subscription, included in dues.Organizational voice through which criminal defense lawyen can formulate and expresstheir position on legislation, mull refam, important defense rases Uuough AmicusCuriae activity.Disurune and freeofferings for publications afinlerest to criminal defense lawyen.Research Service available at a reasonable burly rate: messenger service in Ule Capitolarea.ELIGIBILITY AND DUESEffective: January 1.1982Voluntary Sustaining dues IVSI. ....... .$300.00Sustaining dues ISUS) . : ........... 200.00Dues far members in the firm ofa sustaining member ISMFI .......... 50.00Members admitted to practice: IMEMI2 years or less ................ 50.00. 2- 5 years .................. 100.0050, more years. .............. 150.00Affiliate: Persons in careers which contribute todefense of criminal carer, e.g., law proferram. areelibible for affiliate membership upon approval ofthe application and receipt of the annual dues.Affiliate dues IAFFI ............ 25.00Students: Those regularly enmlled in a law schoolin Texas are elibible for student membership.Student dues ISDMl ............ 20.00.