Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

' 

Dane Whitworth. David Sheppard, Ruth Ellen Gura 

I I 

and Gerry orris (clockwise horn upper left) Provide 

a Criminal Law Legislation Update. see page 5 

NOVEMBER 1987

JOURNAL OF THE TEXAS CRIMINAL 

DEFENSE LAWYERS ASSOCIATION 

VOICEfor the Defense USSN 0364-2232) is 

published monthly by the Texas Criminal 

Defense Lawyers Association, MXI W. 13th, 

Austin, Texas 78701, (512) 478-2514. Amual 

subscription rate for members of the associa- 

tion is $24, which is included in dues. Second 

class wstaeaee wid at Austin. Texas. POST- 

All arficles and nth& editorial contributions 

should beaddressed tatheeditor, Keny P. Piiz- 

Gerald, 1509 Main St., Suile709, Dallas, Texas 

75201. Advertising inquiriesand contracts sent 

to AUen Connally, Artforms, Inc., 6201 Guada- 

lupe, Austin, Texas 78752 (512) 451-3588. 

President 

Charles D. Butts 

San Antonio 

President-Elect 

Edward A. Malleft 

Houston 

Erst Vice-President 

J.A. "Jim" Bobo 

Odessa 

Second Vice-President 

Tim Evans 

Part Wonh 

Secretary-Treasurer 

Richard A. Andcrsan 

Assistsnt Secretary-Treasurer 

Gerald H. Goldstein 

San Antonio 

Editor, VOICE for the Defense 

Kerry P. FitzGerald 

Dallas 

Editor, Sigoificant Decisions Report 

Catherine Greene Humen 

Houston 

Executive Director 

lohn C. Boston 

AdminisIralive Assistant 

Lillian SummareU 

Secretary 

Shannon Mclntosh 

"1987 TEXAS CRIMINAL DEFENSE 

LAWYERS ASSOCIATION 

NOVEMBER 1987 VOL. 17, NO. 4 

f EATURE ARTICLES 

CONTCNTS 

5 Criminal Law Legislation Update-Part I 

by Dane Whitworth, David Sheppard, Ruth Ellen Guru and Gerry Morris 

15 The DWI Roadblock Dilemma: An Explicit Neutral Comment on Dallas 

County DWI Roadblocks; Memorandum of Law; An Opinion; Unauthorized 

Dissenting Opinion 

by Ed Mason and Stan Weinberg. Emmett Colvin, 

Judge F. Harold Entz, Jr.. and Emmett Colvin respectively. 

26 Getting Started on an Appeal: Preparing the Record 

by John D. Nation 

31 Effective Prosecution of Sex Offenses Against Children-Part I1 

by George E. West I1 

37 Batson v. Kentucky: A New Weapon for the Defense-Part I1 

by Mark Thielman and Malinda Seymore 

COLUMNS 

3 President's Report 

by Charles D. Butts 

42 The Federal Corner 

by F. R. "Buck" Files, Jr. 

4 Editor's Corner 49 A View from the Bench 

by Kerry P. FitzGerald by Judge Larv Gist 

SDR1-8 Significant Decisions Report 50 In and Around Texas 

41 The Investigator 

by Jack Murray 

by Jolnt Boston 

NEWS 

7 Index to Advertisers 43 138 New Members 

13 CDLP Course Change Notice 30 Statement of Ownership 

25 New NACDL President, 50 Advanced Criminal Law Seminar 

Frank Maloney 51 Lawyer's Assistance Committee 

Knor Joncs. McAllen (1986 8n George E. Luquatc, Houston (1978-79) 

Charles M. McDonald, Wsco (1981-82) 

Roben D. Ioaa, Austin (1980-81) 

Vincent Walker Perin,, Dallas (1979-80) 

DIRECTORS 

David R. Bires 

Houston 

hid L. Bolsford 

Austin 

William A. Bratton ill 

Dallas 

Milie Brown 

Lubbaek 

Stan Brom 

Honstvn 

Buddy M. Dicken 

Sherman 

Bob ktrada 

Wichita Falls 

Carolyn Clau~e Gareie 

Houston 

(ierald H Goldsle~n 

San Anta~uo 

Blll Habem 

Sugar Land 

Mernlee L. Harmon 

Wam 

Joseph C "Lum" Hawhorn 

Beaumont 

Harry R Heard 

Longview 

fcflley Hmmy 

Mldland 

Frank Jackson 

Dallas 

Jeff Kcamey 

~Ofl worth 

John Lmebarger 

Eon wonh 

Edgar A. Mason 

Dslla~ 

lohn Mdler 

Sinton 

E.G. %.my" Maris 

Austin 

Jack 1. Rawilscher 

Houston 

Phil &rlewn, Dallas (1973-74) 

C. Anlhony F~ilaux. Jr.. Hourton 

Frank Maloney. Austin (1971-72) 

Kent Alan Schaffer 

Hou~tm 

George Scharmeo 

San Antonio 

David A. Sheward .. 

Austin 

hfark Stevens 

San Antonio 

Jack Strickland 

Fort worth 

I. Douglas Tiaker 

Coipus Chrirli 

Stanlev I. Weinbere - 

~alfar 

Sheldon Weisfeld 

Bawnsville 

Dam P. Whitwonh 

Austin 

Bill Wischlraempr 

ASSOCIATE 

DIRECTORS 

Webb Biard 

Paris 

Candelsrio Elizando 

Hm~ton 

Ronald Guyer 

San Antonio 

Mark C. Hall 

Lubboek 

Michael P. Heirkell 

Fon wonh 

Roben C. Himon 

Julie Howell 

AuSlin 

Allen C. Inbell 

Hw$to" 

Lvnn Wade Malone 

Wac0 

Glenn A. Perry 

Lungview 

Bandy Taylor 

Dallas 

Bill White 

Austin

President's Report 

Should We or Should We Not? 

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s*.m ad nd uinnepj t@ &lR*tl 

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@euld&St~[&&@H~& @- 

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&bm rrre.mg nww %a 

;lu@c% !$@ Wted kt+ 80Pnte 

Court. 

Approvod by thc Bwnl of Directors 

of the Texas Criminal Defense Law- 

yers Association on the 29th day of 

hmy mrto Senam Bides* Zm- $b~iW to kbn &at '% resolutintr was 

not ahout b;g my off-th~raff irt. 

hmid sebEBn on^^ bfeui' mdw- ~fblu~~ khou16 iq flEjt &vat& t~ the 

&@fegp gwo%~'U*~sQt% arid 

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Editor's Corner 

Tributes to the Honorable Robert Mi Hill, Judge, 

United States Court of Appeals for the Fifth Circuit 

We suffered a major loss on October 19, 

1987 when Judge Robert M. Hill passed 

away while returning from his vacation. 

Judge Hi suffered an asthma attack 

aboard an airltner and died before an 

emergency landing could be made in 

Iceland. 

Judge Hill was bornon January 23,1928 

in Dallas. He graduated from Highland 

ParkHigh School and received his B.B.A. 

and L.L.B. degrees at the University of 

Texas. He practiced law in Dallas with the 

firm Woodruff, Hill, Kendall and Smith 

fmm 1959 until 1970. President Nixon ap- 

pointed him a United States District Judge 

in 1970. President Reagan appointed Judge 

Hill to the United States Court of Appeals 

in 1984, where he was serving at the time 

of his death. 

In order to gain some proper measure 

of Judge Hill, we contacted a number of 

his close friends. Their tributes to Judge 

Hill certainly demonstrate why he was 

such a widely respected person. 

Judge Irving L. Goldberg, United 

States Court of Appeals for the Fifth 

Circuit: 

"Judge Hill was deeply rwted not only in 

Texas history through his family but also 

in the tradition of its law andlawyers. He 

was a man without prejudice, without intolerance, 

and possessed of a desire to 

reach the just result w~th all of the compassion, 

fairnessandequality that all parties 

to a controversy are entitled to receive. 

He was true to the principles of the Constitution 

in giving to all men, women, 

regardless of ethnic background, color and 

religion, the equality that they deserve 

under the law. He was in my opinion a true 

patriot who labored in the vineyards to be 

sure that the fruit of his work bore compassion,mercy, 

justice and understanding. 

4 VOICE for the Defense I November 1987 

May we in the future he blessed with more 

Robert Hills." 

Judge Patrick E. Higginbotham, 

United States Court of Appeals for the 

Fifth Circuit: 

"I think Bob Hill was one of the reallv 

outstanding trial judges. His unerring sense 

of iustice and fairness and his unquestioned 

iutkgrity made him a very st& judge. 

He loved the outdoors and was very much 

a Westerner. He was comfortable in his 

jeans and boots, particularly at his place 

in Santa Fe where he spent a lot of his 

time. We have lost an excellent judge." 

Judge Barefoot Sanders, United States 

District Judge for the Northern District of 

Texas at Dallas: 

"I've known Judge Hill for a long time. 

He ably represented plaintiffs while in 

private practice. We were closely associated 

during the years that I was on the 

District Bench and while be was still here 

as a District Judge. He loved being a 

District Judge, there's no question about 

that. I think heran a suoer courtroom. He 

was a pretty demanding kind of judge but 

he was also verv fair. He alwavs conducted 

proceedings wlth what I wouid call a firm 

good humor He was a real favorlte in the 

courthouse. Everybody really liked Judge 

Hill. He also enjoyed lifeanddealfng with 

people as much as any person I have ever 

known and so there are lots of tears being 

shed around here at this time." 

Ray Hutchison of Hutchison, Price, 

Boyle and Brooks, P.C. (former member 

of the Texas House of Representatives, 

1972-77 and former chairman of the Texas 

Republican Party): 

"Bob Hill was a very very close personal 

friend. As a matter of fact, I did not prac- 

tice in his court because of our friendship. 

Kerry P. FitzGerald 

Judge Hill was the kind of judge that I 

think the people expect a judge to be. He 

had a great temperment and joy of the law 

and for the law. He applied juslice and 

legal principles fairly and conservatively. 

He is just a great trlhute to the Federal 

Jndic~ary and to the Bar. His loss 1s one 

that cannot be measured either to the 

Judicka~y or personally. I can tell just from 

my calls today from people around the 

state that he was just a very much adnured 

person. He enjoyed life and had a good 

life. You just can't measure the loss of a 

person like that." 

Judge Grady Jolly, United States Court 

of Appeals for the Fifth Circuit: 

"I would say that Bob HA1 was one of the 

fairest minded people whom I have ever 

encountered. He was a gentle, unhurried, * 

thoughtful, considerate, very very decent 

human being. And I would say that if I 

wereever acriminal defendant, he would 

have been the judge whom I would have 

wanted to have heard my case, because I 

would have known that whatever the facts 

I would have gotten the most impartial, un- 

biased and fair consideration that I could 

ask from any judge anywhere. He was 

very knowledgeable of the law and had a 

marvelous sense of humor. He loved life 

and lived it to its fullest. He's just nearly 

the most perfect judge whom I have ever 

encountered." W

David A. Sheppard obtained his J.D. 

Degree in 1974 from the University of 

Texas School oflaw. He was uprosecutor 

with the Travis County District Attorney's 

Oftce frorn 1974 until 1976. He is a director 

of the Tauts Cri11~~naiDefense Lowyars' 

Association and was Legislative Committee 

Chainnanfiom p85 mi1 1987. He is 

a certged criminnl law specialist. a member 

of the Narional Association of Criminal 

Defense Lawyers and the Federal Bar 

Association and was an Adjunct Profssor 

at the U.1 Law School in 1986. 

Dain Whitworth ob~ained his J. D. degreefrom 

the Universiry of Texas School 

of Law in 1965. He served as Assistant 

County Attorney and Assistant District Attorney 

in Travis County, j5"onr 1966 to 

1970, and was the first executive director 

of the Tems District and County Attorneys 

Association. He is a cemijid criminal taw 

specialist and a director of the Taras 

Criminal Defense Lswyers Association, 

and has represented TCDLA before the 

Legislafure since 1981. 

Ms. Gura wasadmitted to the Teras Bar 

in 1986. She earned her J.D. from Ihe 

University of Texas at Austin, School of 

Law in December, 1985. She also earned 

her B.S. from Ihe University of Texas at 

Ausfin. Ms. Gum ~uorked as a legisldve 

assistant ro Senator Oscar H. Mauzy (currently 

Justice Mauzy. Texas Supreme 

Coun) for over 10 years, bflfore, during 

and after low school. Ms. Gum represented 

two clients before the 70th Legislame, 

the Texas Criminal Defense Lawyers 

Assaciation and ?he Tern Trial Lawyers 

on issues related to warker's compensation. 

She is now working as an Assistant 

District Attorhey in the oDce of Tmvis 

Colrnty District Attomey Ronnie &rle She 

is a member of the Travis County Bar 

Association amifhe Austin Youw Lawyers 

Association. 

Gerry Morris is a panner with thefirm 

of Smith & Morris, 710 Wesf Avenue, 

Ausfin, Texas 78W1, (512) 478-2517. He 

is a 19Y7 gmduate of The University of 

Tern School of Law, Board Cenged, 

Criminal Law Specialist, Chairman of me 

Criminal Law and Procedure Section of the 

Travis County BarAsmciaIian, 1987-88, 

Director and Chairman of Legislafure 

Committee,TexasIlriminal Defense Lawyers 

Association, 1987-88. Member, National 

Association of Criminal Defense 

Lawyers. 

--= 

Criminal Law 

Legislation Update 

Part I 

On behalf of the Association, I, as Presi- 

dent, want to give special recognition to 

Ruth Ellen Gura, Gerry Morris, David 

Shsppard and Dain Whitworth for their 

frontline battle in the last Legislative SBS- 

sion in our defense against the onslaught 

of legislation that would curtail those in- 

dividual rights gnarmtnteed by the Texas 

and Pederal Constitutions. The very pur- 

pose of our organization is to protect and 

insure, by rule of law, those rights, and 

the efforts of Ruth Ellen, Gerry, David, 

Dain and other loyal members on behalf 

of our Association. In testifying b efb the 

Legislature, keeping up with proposed leg- 

islation, and all the many othe; thankless 

tasks that went with those efforts, these 

people merit very special thanks and com- 

mendations. 

Charles Butts 

The foUowing synopsis relates to the most 

significant Criminal Law Legislation passed by 

the Texas Legislature. In some mstances, 

because of the significance and impact of the 

Legislation, it iseither described inmoredetail 

or quoted in its entirely. 

APPOINTED COUNSEL 

S.B. 1108 

S.B. 1108 creates Aaicle 1.051 C.C.P. 

detailine the Rieht to Re~medltation byCol 

and dc&s th; prot&res and stadards for 

deicrminina indiamcy and sets out the app.llale 

end calla&ral -mtters requiring appointed 

counsel. 

It further amends Article 26.04 C.C.P. setting 

out standards far a determination of indigency 

and procedures for appointing counsel 

and duties of appomted counsel. 

Finallv it amends Article 26.05 C.C.P. to 

elilninnte the structured pay schedule and providcs 

for vavmcnt of "reasonable" 3ttllmev's 

fees a~d &enses t6 appointed counsel ikd 

mandates the establishment of a sch&ule of fees 

by the courts of each county. 

The Legislation specifically prevides as 

follows: 

SECTION 1. Chaster 1, Code of Criminal 

Praeedure, is amen& by adding Article 

1,051 to read as follows 

November 1987 1 VOlCE for the Defense 5 

-

An. 1.051. RIGHT TO REPRESENTATION 

BYCOUNSEL (4 Adefendant in a crimi~l 

mMer is entitledto be repnsenlerlby c o d 

in an adwrsarial judi~alproceeding lo allow 

adequate prepemtion for the proceeding. 

(h) Far the prrrpoxes of this art& and 

Anicles 26.M and 26.05 ofthis code, "indigent 

" means aperson whais notflnanc*rlly 

able to employ mumel. 

fc) An indige~~t defertdannt entitled to have 

an attorney appointed to represem hint in any 

adversary judi&lproeeeding thar may result 

inpwtishmetu byeoltfi~ment andin my oU7er 

crinrimlproceeding ifthe corm mneluder that 

theinterests ofjustice require representation 

Ban indigen1 defendant is e1llilIed to and requests 

appointed eoansel. the courl shall appoint 

counsel to represent the defendant as 

soon as possible. 

(d) An eligible indigent defendon1 is entitled 

to have the triol eoun app~itlr an attorney to 

"predent him in the followitrg appellole and 

parcot~via~orz habeas cotpro manerss. 

(1) on appeal to a caun ofappeals; 

0 an oppd to the Colin ofCri,nitml Appeals 

ifrheoppeol is mode dimly fom 

the trial coun or ifo petition for discretionary 

renew has been granted. 

(3) a habear cops procepdng i$ the 

couri concludes lhat the inferest ~fjuh'ce 

require representation: and 

(4) any orher appsNnreproeeedir~g ifthe 

corn conclndes thaf the Interests ofjwrice 

require represerrtation. 

(e) An a~ledc~m~lisenhtledfo IOdnys 

topreprejar oproceedbrg but "ry naive the 

prepamion tone ntth the eotaatt of fhe d&don1 

in writing or an the remrdin open cmm. 

Ifa rronindigenr defendant or on indigent 

defendant who has appointed cowtsel 

ir order to reroirl pnvafe countsd appears 

without counselat thepmceedi?~g after11~1ing 

been given a ms011able oppommity to retain 

counref. the cQun, on ~Odays'mtice to the 

defendanr ofa dispo~itive setting, may proeeed 

will1 the n~nnerwitAoutseah'r~g aWnWnnen 

wirw or appoiining counsel. 

fl A defe~tddonl may voluntarily and inrelIigeut/y 

waive in nn'ting the right to cmt~sel. 

(gJ Ifa defendant wishes to naive his rigRt 

lo cauwel, the court shall advise him ofthe 

dangers and disodvantnges of selfrepresecmlion. 

Ifthe court defennines that the 

wiwr is volu~zmrily and b~tellige~tly made, 

the court shall provzde the dejendmt with a 

statement sttbstantially ih the jollowing form, 

wfdch. Ifs&nedby the defendant, shalibefred 

with and become pan QJ the record c!j the 

pmceedings: 

'Ihave beer, advised rhis day 

of . 19-. 

by the (none of mu) Court of my 

right to representation by couuwsel in 

the trial ofthe chargependutg agai~ut 

me. I have been funher advised that 

if laar unable m afford counsel, orre 

WU be appointed for ~rte free of 

charge. Understanding nty right to 

6 VOICEfor the Defense I November 1987 

have munseloppnintedfnr inejree of 

charge if1 om nolfinonciolly able to 

employ counseL I wish to wive thaf 

right Md request the mu17 fopmceed 

with my care m'thautm mtomey being 

appointed for me. I hereby waive my 

right to coumef. (sigtuzfure of the 

defendant)" 

(h) A defeejendcmt my ~ithdmw o waiw ofthe 

right to osnrelnt ony time hut isnor entitied 

to repent a proceeding previoasly held or 

wivedsokly on thegrowrdr ofhe subsequent 

appointment or retention ofcounrel. If the 

defnnBont mmlMraws a waiver. the trialeonri, 

in its discretion, may provide the appointed 

munsel I0 days to prrpare. 

Section 2. Article 26.04, Code of Criminal 

Procedure, is amended lo read as follows: 

An. 26.04. COURT SHALL APPOINT 

COUNSEL. (a) Whenever the caun defermines 

that a dejendant charged with a felony 

or a misdemeanor plnishable by imprisonment 

is indtgmt or that the interests ofjustice require 

reprew,,taIion of a defendarrt in a 

criminalproceeding, the court shall appoint 

one or more practicing atlorneys Lo defend 

him. Ax Mtomey appointed under this subseetiwr 

shall represent lhedcfw~daut mtil dtarges 

are dismissed, the defendant is acquitted, appeals 

are erhnurled, or the anorney is relieved 

ofhis duties by the coun or replaced by other 

eouml. 

(b) In detenninitrg wherher a defendai~f is indigent, 

the coun shnN &der suchfactors 

as the defendant's it~cotne, source afiwonre, 

property owned outstartding obligations. 

necesaty erpersses, the number andages of 

de~endettts. . mou~olinome. ' 

and nfiether the 

drjmdo,a hasported or ir rapobie ojpnrtinl: 

bail. 71w court stq not dmy nppointcd 

cound to a defendant solely bacorrse the 

defe11du18 hasparredor is capableofposting 

bail. 

(c) A defemist~t wlrorequeska detennmafion 

ofindigency andappoinfntenf of munsho 

(I) complete utrder oath a qaesrionnaire 

concernifv hisfinaneiol resources: 

('2) respondunder oath lo an tlamination 

regarding his financial resources by tile 

judge or maginrare re~pondble for determining 

whether the defndaont is ir~digent; 

or 

(3) complete the qwionnaire and respond 

to examination by the jr&@ or 

Ina*risIrate. 

Id) BeforenraKngadetennination ofnnhetiter 

adefendarrt is indigent, IhemurrshmNrequest 

the defendant to sim under oath a statemettt 

subsr~ntiaily in th~jallowi)tg fonn: 

"0 this day of 

, 19-, 1 hove 

been adwsad by the (name of rhe corrnJ 

Court ofnry right lo represenfaliorr by 

ruwd in the tmil oftlre chorgependinlg 

against me. I certifi that I am without 

mems to enploy coutwi ofmy ow11 chum 

ing and I hereby rsquesf fhe court lo 

appoint eounselfar me. (signomre ofrhe 

defendmt)" 

(e) If there is a ntarerial drange in cirnmutorrcer 

after a deternitration of indigency 

or nonindigency is made, the defendant. the 

defendnnt's ~unsel, orthe mtomey representing 

lht stare may movefor reconsidemtio?~ of 

the detem'nntion. 

@ A wrinen ororalmtemen( elicited under 

tl~is attide or evidence derivedfom the slatemen1 

may not be'used for any purpose, a- 

cept to determine the defndafrt's lndigency 

orto impeochtlredinatesrinm~~yofthedefendant. 

nris subsection does not prohibit prosecution 

ofthe defendant utider Chapter 37, 

Penal Code. 

SECTION 3. Article26.05, C&of Criminal 

Pmeedure, is amended to read as follows: 

Arl. 26.05. COMPtiNSATION OP 

COUNSI!I. APK)IEFI'EU TO DEFEND. (4 

A cou~~pel, other than an anomey withapubirc 

defended ojim, appointed to represent a 

defedmt in a erimimlproceeding, including 

a habeas corpus hearing, shall be reimbursed 

for reaso~mble upemes incurred with prior 

coun approval forprrrposef ifinvesligaliotr 

and erpert twtimony and shall be paid a 

reasonable attonrey's fee forperforming the 

following senices, baredon the time andlabor 

required, the ccomplaity afthe case, and the 

erperience arrd ability of the appoinred 

counsel: 

(1) trme spent in court making an appearcum 

on behnrof the defendant as 

midencadby a docker entry, time spenlin 

trial, or time speut in a proceeding in 

which wont oral testimony is elici~d; 

dwrmenr&'on Nmt the mrt requires; and 

(3) preparation ofan appellate briefto a 

mrrrlofappeals or the Court of Criminal 

Appe~ls. 

(b) Allpaynents made under this anicle shall 

be poidin accordance with a schedule &vs 

@dopled by formal qctiall ofthe cou,nty and 

district criminal coun judges within each 

caumy, a~ept that in a counfy with only one 

judge with c"minla1 jurisdrcrion the scl~edde 

wiii be adopted by the odminislmlive jlulge 

for the judicid disfricf. 

Id . , Each fee dtedde ade~fedlvili incfudea 

jkd mte, minimum and marinurn honrly 

rates, and daily mtes nnd wilipmridc afonn 

fw reponing the lypes ofsewices performed 

in each om Nopayment sltall be made under 

this seniorr until rhe form for reporting the 

semicesperfmmed is submitted andapproved 

by the court andis in accordance with the fee 

sche-dule for that county. 

(d) ANpaynenu rwde underthis arlicie shnll 

be paidfrom the generaljiurd ofthe county 

irt which the omsecution Jros u~slitttfed or 

habcas corpro hearing held and may be itreluded 

as cost of courts. 

(e) Ifthe court determines #tat a defendant 

hasfi,wncial resources that enable him to off-

set in pan or in whole he casts of the legal 

servicespmdded, including my p~permes ond 

costs. the coun shqil order the defendant PO 

pay the amount rhat itfinds the defPndnt is 

able to pay. 

SECTION 4. Chapter 26, Code of Criminal 

Prncedure, is amended by adding An& 

26.056 to read as follows: 

Art. 26.056 COST OF EMI%OYMENT OF 

COUNSEL FOR CERTAIN MINORS li u 

jusenile has been manrferred to a criminal 

mun under Section 54.02. Family Code. and 

if a caun appoinb counsel for the juvenile 

under ~nlcle%.04 of this code, the cormry 

tho1 pays for the corr,tsel llas n cause of action 

agaifrrr npnreut or otherparsotz who is 

responsible for tk anppotiqfthe juvenile and 

isjiintrnc~ally able to enploy cou,rrcl for tlre 

jttwnile but refitsees to do SO. 7lre county may 

recover its cost ofpayment to the appointed 

counsel all6 ?any recwer nltohtey's fees nec- 

essary to prosentre dle muse of oetion agaiwl 

the prmr or orher person. 

SECTION 5. Thts Act takes effect September 

1. 1987. 

CONSTITUTIONAL 

AMENDMENTS 

SJR 34 

SJR 34 amends Article V, Section 26 of the 

Texas Constitut~on to provide that State is entitled 

to appeal in a criminal case as authorized 

by the Legislature. 

SECTION I. Article V, Srliun 26, of lhc 

Terns Cun\tilulinn is ~mcnded lo read ar 

follows: 

Sec. 26. The State is entitled to appeal in 

criminal cases, us ourhoriredbygeneraiim. 

SECTION 2. This proposed constitutional 

amendment shall be submitted to the voters 

at anelection to beheldan November 3,1987. 

The ballot shall be printed to provide for 

voting for or againsclhe pmposkm "The 

constitutional amendment giving the state a 

limited right to appeal in criminal cases." 

SJR 53 

SIR53 amends ArticleIV, Section 12 of the 

Texas Constitution to provide limited term of 

office for persons appointed by the Governor 

after November 1st immediately preceding the 

end of his term of office. 

CRIMES 

H.B. 151 

H.B. 151 rewrites Section 42.11 PC., 

redefinilig various aspects of the offense of 

Cruelty to Animals. Creates a new felony 

punishment if the actor has been twice wnvicted 

under subsection (a). 9/1/87 

H.B. 161 S.B. j01 

H.B. 161 amends Section 22.021 P.C. to S.B. 701 amends Section 30.04 P.C. to add 

allow a spouse to becharged with Aggravated coin collection machines to the Burglary of a 

Sexual Assault. 9/1/87 Coin-operated Machine statute. 9/1/87 

H.B. 280 

H.B. 280 amends Section 38.04 P.C. to in- 

crease punishment to Class A misdemeanor for 

evading arrest if the actor recklessly engages 

in conduct that places another in imminent 

danger of serious bodily injury; intoxication 

while operating a motor vehicle creates a 

presumption of recklessness. 9/1/87 

H.B. 288 

H.B. 288 amends Section 39.03 to add as 

felony offense the release or receipt, of the con- 

tent of a proposed or actual appellate decision 

prior to public release. 9/1/87 

H.B. 359 

H.B. 359 amends Section 47.06 PC. to 

change the defense of antique gambling device 

from device manufactured prior to 1940 to 

device 30 years old or older. 9/1/87 

H.B. 412 

H.B. 412 expands Section 46.11 P.C. to 

make it an offense to possess or wnceal a dead- 

ly weapon in a penal institution. 9/1/87 

H.B. 571 

H.B. 571 creates Section 42.12 P.C., keep- 

ing vicious dog, Class B misdemeanor. Also 

amends CCP to provide for destruction of 

animal if repeat offender or death resulted. 

9/1/87 

H.B. 592 

H.B. 592 expands the provision of Section 

37.12 P.C. to include badges, insignias, 

shoulder emblems, and any other item bearing 

the insignia of a law enforcement agency, in 

the offense of Fake Identificationas a Peace Of- 

ficer. Creates additional offense of misrepte- 

senting an object as property belonging h a law 

enforcement agency. 9/1/87 

H.B. 612 

H.B. 612 amends Section 36.10 P.C. to 

remove the $250.00 maximum limit on hono- 

rarium and expenses in the non-applicability 

provisions relating to the offense of a gift to a 

public servant and offering a gift to a public ser- 

vant. 9/1/87 

It further amends Election Code to make it 

a Class C misdemeanor to wear political 

badges, insignias, emblems, etc. within 100 feet 

of door to polling place. 9/1/87 

H.B. 826 

H.B. 826 amends Section38.02 P.C. to make 

it an offense to fail to identify oneself to an of- 

ficer who has arrested him-rather than mere- 

ly being stopped by the officer. Also make it 

an offense to give fictitious name if arrested or 

a witness. 9/1/87 

H.B. 1904 

H.B. 1904 addsanew Section43.251 to the 

Penal Code making it an offense to employ a 

person under 17 years of age to wotk in a sex- 

ually oriented commercial activity or to work 

nude or topless. 

H.B. 1277 

H.B. 1277 amends Section 12.51 P.C. to 

allow a fine or up to $50,000.00 against cor- 

porations or agsociations if convicted of felony 

or Class A misdemeanor in which an individual 

suffers serious baddy injury or death. 9/1/87 

H.B. 2193 

H.B. 2193 amends the Property Code by 

adopting Unifonn Fraudulant Transfer Act and 

provides a penalty for making a false affidavit 

of no liens in real estate transactions. 9/1/87 

H.B. 2278 

H.B. 2278 amends Sectron32.35 (b) P.C. to 

provide a defense to the offense of Receiving 

Deposit in a Failing Financial Institution if 

deposits are insured. 8/31/87 

S.B. 24 

S.B. 24 creates various hazing offense in the 

Educational Code. Punishments vary from 180 

days to 2 years in County Jail. 9/1/87 

S.B. 102 

S.B. 102 creates the Class A misdemeanor 

offcnse of DisablingaFireExit Alarm. 9/1/87 

S.B. 342 

S.B. 342 amends Section 47.01 P.C. to ex- 

clude from the definition of a bet, carnival 

November 1987 1 VOICE for the Defense 7 

-- -- -- --

prizes woah less than $25.00 in charity events. 

Also rewrites Section 47.03 to include and 

define "bookmaking" 9/1/87 

S.B. 887 

S.B. 887 amends Section 25.08 P.C. tomake 

it an exception to offense of violation of pmtec- 

tive order that actor was the applicant for the 

order of person the order is intended to.pro- 

tect. Also pmvides it's not a defense that 

information is excluded from the order under 

Section 71.11 of the Family Code. 9/1/87 

S.B. 1083 

S.B. 1083 amendsSection32.41 P.C. topro- 

vi'de issuance of a bad check is not a lesser in- 

cluded offense to theft or theft of service. 

6/19/87 

S.B. 1111 exp9ds provisions of Section 

25.08 P.C. to include schwls, child care facil- 

ities, residences, businesses, and places of 

employment as places which can be prohibited 

in protective orders, and provides reconciliatory 

agreements do not affect validity. 9/1/87 

S.B. 1277 

S.B.1277 amends Section 12.51 PC. topro- 

vide for a finenot to exceed $50,000 if, as a 

result of an offense classified as a felony or 

Class A misdemeanor, an indtvidual suffers 

serious bodily injury or death. 

SECTION 1. Section 12.51, Penal Code, is 

amended to read as follows: 

Sec. 12.51. AUTHORIZED 

PUNISHMENTS FOR CORPORATIONS 

AND ASSOCIATIONS. (a) If a cornoration 

or association is adjudged guilty of & offense 

that orovides a oenaltv . , consistine - of a fine 

only. amun may smtmccthc corporation or 

arsoriation to pay a fine io an amount fixcd 

by thc earArt, not to exceed the finc providcd 

by the offense. 

@) IfamrpoIahon or ~ssociation is sdpdged 

guilty of an affense that provides a penalty 

includiig imprrsonment, or that pmvides no 

specificpenally, awurt may sentencethe corporation 

or association to pay a fine in an 

amount fixed by the court. nor to exceed: 

(1) $20,OW if the offense is a felony of 

any category; 

(2) $10,000 if theoffense is aCless A or 

Class B misdemesnoc 

(3) $2,000 if the offense is a Class C. 

misdemeaoor; or 

(4) ~ 0 0 if, 0 as a rmlt of nn offeme 

class$ed as a f h y or Class A misdcmeanor, 

rn imiividual q?ers serious Wily 

injury or death. 

8 VOICEfor the Defizse / November 1987 

(e) Inliw of thefies authoTiZed by Subs.% 

tions (a), @I (1). @) (2), mi (b) I4 of this 

section, if a court finds thst the corporalion 

or association gained money or properly or 

caused personal injury or death, property 

damage, or othsr loss through the wmmission 

of afelony or Class A or Class B misdemeanor. 

the courtmav senteneethe wmralion 

or ar,ociuion tu pay a line inan amount 

Bxd by the murt, nut to exreed double Ihe 

amuunu'gaincd or caused by the corporatinn 

or associdiion to be lost or darnoged, 

whichever is greater. 

(d) In addition to any sentence that may be 

imposed by this seetion, a corporation or 

associatio,i that hss been adjudged guilty of 

an offense may be ordered by the court to give 

notice of the canvidion to my pe~nthe court 

deems appropriate. 

SECTION 2. This Act takes effect September 

1, 1987; 

SECTION 3. The importanceof this legisla- 

tion and the crowded condition of the calen- 

dars in both houses create an emergency and 

an imperative public necessity that the can- 

stitutional role requiring bills to be read on 

threeseparatedays inewhhousebesuspend- 

ed, and this rule e hereby suspended. 

CRIMES INVOLVING CHILDREN 

H.B. 113 

H.B. 113 amends Section25.03 P.C., interfwence 

with Child Custody, to eliminate requirement 

that the child be taken out of State, 

now requiring only that the child he taken out 

of the area of the Court's jurisdiction with the 

intent to deprive the Court of authority over the 

child. ~cdu.ms thctimc from scvcn to ihree &ap 

in which a dzfcmzcan he established by wturning 

the child. Also creates the felony offense 

of agreeing to abduct a child in violation of a 

custody order. 9/1/87 

H.B. 169 

H.B. 169 amends Section34.03 Family Code 

to remove immunity from criminal or civil 

liability for persons~reporting their own con- 

duct. 8/31/87 

H.B. 494 

H.B. 494 amends Aaicle 12.01 C.C.P. to ex- 

tend theperiod oflimitation for the offenses of 

Sexual Assault of a Child and Indecency With 

a Child, from five years to ten years. 9/1/87 

H.B. 657 

H.B. 657 requires training of judges to the 

laws pertaining to abuse of children, video- 

taping of a ch~ld's testimony, and competency 

of children to testify. 8/31/87 

H.B. 6W 

H.B. 697 amends Aaiele 24. C.C.P. allow- 

ing a subpoena for a witness under'l8 ta be 

issued to the went or euardian. with an attach- 

ment issuing.for both & parent and child if the 

parent does not produce the'rhild. 6/17/87 

H.B. 1904 

H.B. 1904 addsSection43.251 P.C. treating 

theoffenseof Employment Harmful to Minors. 

It is a Class A misdem.eanor offense to employ 

a child in a sexually oriented commercial a* 

tivity or in an activity in which the child is nude 

or topless. 

H.B. 1963 

H.B. 1963 reduces theculpablemental slate 

for the offense of sale of alcoholic beverages 

to a minor from knowingly to criminal negli- 

gence. (Section 1) 1/1/88 (Swtion 2) 8/31/87 

{Section 3) 9/1/87 

H.B. 2146 

H.B. 2146 amends ArticIe 38.071 C.C.P. to 

uennit the attornev for the defendant adauate 

bpporhmity to co&ult with the defendau

H.B. 2575 writinz. If rhe murf d c s the odnwnirions 

in wriring, irrnurr rsceive a starentent signed 

H.B. 2575 amends Section 22.11 (C) P.C. 

to limit the affwive defense that the actor 

was not more than two years older by requiring 

an addition that the actor did not use duress, 

force, or threats against the victim at the time 

of the offense. 9/1/87 

byfhed+n&ntmdflrPde~&t's~~ttorney 

that he undersMndv the admonitions and is 

awore of rhe cqnrequences ofhispleo. Iffhe 

WeMt iswtableorrefuFes losign the r2oIeC 

fW*. shanmake Ihe ndrnDnirionr 

omlly. 

H.B. 2576 

CRIMINAL PROCEDURE 

H.B. 23 

- - - 

H.B. 163 

H.B. 249 

H.B. 23 Article28.061 and32A.02, C.C.P. 

H.B. 249 amends Article 14.06 C.C.P. to 

allow an arresting officer to take the defendant 

to anadjacent county forthemagistrate's warnare 

amended. In 28.061, the definition of ing if necessary to "expedite" the process. 

Speedy Trial transaction is changed to "bar any 

further prosecution for the offense discharged 

8/31/87 

and for any other offense arisingout of the same 

transaction, other than an offense of a hiaher 

grade than the attorney reprcxnting the Gate 

H.B. 349 

H.B. 349 adds organizedcrin~ind wtivily to 

and prosecuting the offcnsc that wds discharged those uflenscs in Article 12.03 which have the 

does not havc tho primary duty to prosecute." same limitatims pericd as thc object of con- 

la Article 32A.03, the time fur announcenlent spiracy - . or attempt. 9/1/87 

of ready on a felony is increased to 180 days 

and specifically exclndes periods from mmputa- 

tion when a defendant is absent because he is 

H.B. 83 amends ArtieIe42.12 C.C.P. lo pru 

vide a Court may not order adefendant to make 

any payment as a condition to probationexcept 

as authorized by statute; authorizes Court to 

order participation in program to teach func- 

tional illiterates to read; authorizes to order 

serving a term in a community rehab center; 

authorizes electronic manitoring; authorizes up 

to 30 days in jar1 for administrative violation 

or commission of misdemeanor offense, and 

repeals Article 42.13 C.C.P. 9/1/87 

H.B. 554 

afugitiveor his bailhas been forfeitedor when H.B. 554 amends Article 42.08 C.C.P. to 

he resists return to the State for trial. when a allow for consecutive sentences in mobationsdefendant 

is released fromeustody withoutbail limited to a total of ten years felony probation 

and anv delavs result from the com~letion of 

scientiiic an~lysis. 9/1/87 

and maximum time available in a misdemeanor 

case. A probation can be stacked on pen time, 

H.B. 83 

but a Den time may not be stacked on a prnba- 

H.B. 635 


eliminate theD.W.1. "comiction packet" pro- 

vision. and requires the defendant's tingerprint 

on thejudgment ordocketsheet in any D.W.I. 

Section 19.07. (a) (2), or any misdemeanor 

punishable by jail, 9/1/87 

in the following order: 

1. Theindictment ofinfomtionlhsllbe 

read to the jwry by the anomey pros- 

ecuting. When prior mnvictions are 

alleged for purposes ofenhancement only 

and are not jurisdictional, that portion of 

the indicmtent or Momtionmi~gsuch 

mnvktions shall nolk read until thehear- 

ing on punishment is held ai provided in 

Article 37.07. 

2. Thespeialpleas, ifany, shall be read 

by thedefendanrs cowl, and iftbeplea 

of not guilty ir also relied upon, it shall 

also be slated. 

3. The State's attorney shall state to the 

jury the natore of the accusation and facts 

which are expected to be pmved by the 

State in support therwf. 

4. The testimony on the part of lhe State 

shall be offeered. 

5. The nahlreofthedefenses relied upon 

and the fm e e d to be pmvedin their 

support shall be stated by defendant's 

counsel. 

6. The testimony an thepanof thedefendant 

shall be offered. 

7. RebuDing testimony may beoffered on 

the part of each party. 

8. In the event of a fmdmg of guilty, the 

trialshall thenproceed as set forth in Article 

31.07. 

Ib) Ihe defe~rdanr's counsel may nwke rhe 

opening staremenf for the defendant imt,rrdiarrly 

oper the orromey representing rhe 

Stare m&s the opening sfafemerzt for the 

Sm. AAffer the drfedont 's mome), uvlcludes 

the dpfendanlb opeoing sfatelnenf, fhe Elate's 

resfimorry shall be ofeeed. Af the conclusion 

of fhe pmenration of fhe Sfarc's ferlinmny, 

rhe defendan13 fesrlnorty sld be &red, lvrd 

rhe order of pmceedings shd conlinue in the 

m e r described by Subseclion (a) of this 

anicre. 

SECTION 2. Thechange inlaw made by this 

Act applies only to a case in which the indictment 

or informstion is read to tbe jury on or 

after dm effective date of this Act. if the indictment 

or Information is read to the jury 

before the effective date of this Aet, the order 

of pmeeedings in the trial in effeet sn the date 

of the reading applies, and the fomr law mntimes 

in effect for this purpose. 


1, 1987. 

H.B. 679 

H.B. 684 


H.B. 95 

allow the defense attorney to make his open- H.B. 684 3.01 P.C. to ex- 

H.B. 95 amends Article 26.13 C.C.P. to ing statement imediately after the State's ~ ~ 

allow the admonishments to a defendant to be opening statement. 9/1/87 repeated omission of any one Title 7 offense 

to "the wmmission of two or more offenses, 

given in writing, rather than oralty. 8/31/87 

SmION 1. Article36.01. CodeafC~iminal regardless of whether the harm is directed 

SCTION 1. Article26.13, Code of CNninal Pmeedure, is amended to read as follows: toward or inflicted upon more than one person 

Procedure, isamended by adding Subsenion 36.01, ORDER OF PROCEEDINGIN or item of property, under the following cir- 

(d) to read as follows: TRIAL. (a) A pry being ~mpanelad in any cum"CeS: (1) the offenses are wmmiued put- 

(d) Ihe coun nay make rhe adtnoniriorrr re- crirmnal action, erctpfaspmvidedbyn&sec- sllimt to the same transaction or pursuant to two 

qrrired by thir article eirher ornlly or in lion (b) ofthisanicle, thecause shalt proceed or more transactions that are connected or con- 

November 1987 1 VOICE for the Defense 9

slitnte a commonscheme or plan; or (2) !he of- 

fenses are repeated commission of same or 

similar offenses. All other provisions of Sec: 

lton 3 remain unchanged. 9/1/87 

SECTION 1. Section 3.01. Penal Code, is 

amended to read as follows: 

Sec. 3.01. DEFINITION. In this chapter, 

"criminal eoisode".means the commissMn of 

SECTION 2. (a) The change in law made by 

this Act applies to thejoinder4 prosecutions 

of offenses arising out of a single criminal 

episode only if each offense occurs after the 

effedvedate of this Act. For purposes afthis 

seerion, an offense is Earnmilfed hefore !he 

effeciivedate ofthis Act ifany elemeot afthe 

offense occurs before the effective date. 

(b) The joinder of prosecutions for offenses 

arising out of as~ngleeriminal episode if ahy 

of the offenses was committed before the effeetivedate 

of this Act is covered by the law 

ineffect before theehangesmadeby this Act, 

and the former law is continuedin effect far 

this purpose. 


1, 1987. 

H.B. 1104 

H.B. 1104 completely rewrites Article49 of 

C.C.P. settmg out theprondures to he followed 

in inquests and the responsibilities of Justices 

of the Peace. 9/1/87 

H.B. 1175 

H.B. 1175 anlends Article 14.05 C.C.P. to 

prohibit an officer froni entering a residence to 

make a warrantless arrest with two exceptions: 

SECTION 1. Adele 14.05, Ccdeof Criminal 

Procedure, is amended to read as follows 

An. 14.05 RIClHTS OF OFFICER. In each 

caseenumerated wherearresls may belawfully 

made without warrant, the officer or person 

making the arrest is justified in adopting 

dl the measures whichhe mieht - ad001 . in cw 

of arrest under warrant. erccot that on officer 

(I) opemon who resides in the residence 

consents to the errij; or 

engenr cimmtmces require that the 

o.cer making the orrest errrer the 

residenm wirhorrr the consent ofa resident 

or without n warrant. 

10 VOICE for the Defeme I November 1987 

H.B. 1826 

H.B. 1826 amends Arhicle 42.12, Section 6 

allowing the Court to make it a term of proha- 

tion that the defendant pay counseling costs for 

the victims of certain sexual offenses. 9/1/87 

H.B. 1827 

H.B. 1827 adds personal identification infor- 

mation to the lists of information required on 

a personal bond by Article 17.04 C.C.P. 9/1/87 

S.B. 66 

S.B. 66 amends Anicle 38.071 C.C.P. 

relating to the recording of an oral statement 

of a child. It was enacted and signed into law 

prior to the decision m Long v. Slate, which 

declared Sections I and I1 of Article 38.071 

unconstitutional. 

It also amends SeclionJll relahn~ to who may 

be present during the making of a video tape. 

It also creates Article 21.31 C.C.P. providing 

for medical testing to determine if the defendant 

has a sexually transmitted disease. 

SECTION 1. Article 38.071, Code of 

Criminal Pmcedure, asamended by H.B. No. 

2146, 70th Legislelure, Regular Session, 

1987, is amended to read as follows: 

Art. 38.071. TESTIMONY OF CHILD 

WHO IS VICTIM OF OFFENSE 

Sec. 1. This anicie applies only to a proceeding 

in the prosecution of an offense 

d&ed by m y of thefollo~~it~g seerio~zs of the 

Pennl Code ifrlze offense is alleged ta have 

been committed against a child 12 years of 

age oy youngera,rdftI~efriaI~(penflnds tRnr 

the child is rorol.ailable to terrify at the trial 

of the offense, and applies only to the 

statements.or . t i n y of that child: 

(I) &ion '21.11 (Indecetlcy with the 

; Child);' . 

. . : .@);?)- ~ection 22.011 (Sara1 Assault); 

. : . . 

(3) Section 22;02 (Aggmvard Assnuit); 

. .~ ' (4)Se&ion 22.021 (Aggravated S m l 

; - Asmrrlt); 

(5) Seeti& 22.04 (b) (hljury to o Child 

or an Elderly hdividmd); 

(6) Section 22.04 (c) (Injury to a Child 

or an Elderly Iwdividual), ifthe conduct 

is cornrnined inrentiminiiy or k~rowlngly; 

(7) Section 25.02 (InmrJ: 

(8J Section 25.05 (&iidIarion ofn UtiIdJ, 

ifthe offense is afelony ofthe thirddegree; 

or 

(9) Section 43.25 (Serial Pafonnance by 

a ChildJ. 

Sec. 2. (a) 'the renuding ofan oralstatonefir 

of the child mpde bgfore lhe indicttnent is 

ret~rned or the co~minitrf 110s been filedisadmissible 

into evidc&e if the our1 makes n 

neutral individr~olesperiencedtrr childabuse 

we8 that sech tofind the trnfh of the maner. 

(b) Ifa recording is mode under Sub~ction 

(a) ofthis section andafter an indictment is 

remtedorn coqlarnthas beenfiied, by motion 

ofthe alrorney represenling the state or 

the attorney representing the defmfant and 

on the approwl ofthe court, both attonreys 

may propourd wriften inlerragntories thaf 

shall be presented by rhe same neutral individt~nl 

who made the initial inquiries, if 

possible, and recorded under the sariIe,or 

similar cirntmsrance3 ofrhe original ~ecordlag 

~ ith the timear~ddaleofth~ inqiiry clearly 

indicated in the recording. 

(c) A recording made under Subsecxion In) 

ofthis section is not admissible mto eviderrce 

unless a recordwg mode under Subsection (b) 

is ndmitted or the same rime ifa recording 

rrn8er Subsection (21) nws requstedprior to 

ritm aftrid. 

Set. 3. (a) On isownmotionoron themofion 

ofthe nltorney representing the stare or the 

anonrey represmfirzg the defendaar. the court 

may ordcr that !he testimony of the child be 

takenduriirg the trial in a rmn~atherthan the 

courlraom and be televised by closed circuit 

equipment in the courtroom 10 be viewed by 

the court, the coun reporter, and the fmder 

of fact. To the extent prncf~mble, only the 

judge, the attorneys for the defendant and for 

the state, persons necessary to operate the 

equipment, and any person whose presence 

would eamribute to the welfare and well-being 

of the ehdd may be present in the room with 

the child during his testimony. Only the attameysandthejridgemay 

question the ch~ld. 

To the exlezrprncticabIe, the penon necessary 

to operate the equtpment shall be confined to 

an adjacent nam or behlnd ascreen or mimr 

that permtts them to see and hear the chdd 

dunng his testmany, but does not pernut the 

chtldto seeor hear them. Thecouashdpermil 

the defendant to observe and hear the 

testimony of the chid and to conunnrrimte 

mwtetnpormeously with his atfortrey during 

periods of recess or by audio contacr, but the 

eouit shallaitmp to ensure that thechid cannot 

hear or see the defendant. The coun shall 

permit the attorney for the defendant adequate 

oppanunrty to confer with the defendant 

during crossexammation of the chlld. On 

apphcatron of the attorney for the defendant, 

the court mey recess the prweeding before 

or durmg cross-examtnation of the child for 

a reasonable time toallow theattorney for the 

defendant to confer with defcndant. 

(6) The court may set any orher co~~ditions 

and limitntiom on tlte raknrg ofthe testinwny 

tltnr itfindsjrrrr nrtd npproprinle, takiug into 

consideration the ihterest ofthe child, the 

rights ofthe defendant, and any other rele- 

,mt factors. 

Sec. 4. (aJ Aftr au indietmerrr hos becn 

rerunted or n co,nplaint jiled clrargmg rke 

defendmu nith on offense to which this art,- 

cle applia, an its o w >notion or m tltenrotion 

of the attorney represenling the state or the 

ortonmy represomg the defcndmtr, rhecoun 

may order that thc testimony of the chlld be

taken outsidethemuttroom and he recorded 

for showmg the coumoom before the court 

and the finder of fact. To the ertent prac- 

ticable, ohly those persons permitted to be 

present st the tsbng of testimony under Sec- 

tion 3 of this anicle may be present during 

the taking of the child's testimony, and the 

penansoprating the equipment Shall be mn- 

fiwd fmm fhe child's sight and hesling as pm- 

vided by section 3. Thecorn shall permit the 

defendant to observe and hear the testimony 

of the ci$d and to communicate colllenr- 

porarteously with h,s attorney duringperiods 

of reces or by nudla mntad hut shall atAmpl 

toensure that thechildcannot hear or see the 

defendant. 

(b) The mun may set arty otlrer conditions 

and limiratio,rs on fhs taking of the feslimony 

that itfindjm andnppropnote, faking into 

consiperatiml the interest of me chrld, the 

rrgltn of the defendant, and any olher relevmit 

faem. The courtshall alsoensure that: 

(I) the recording is bothviswl and aural 

and is recorded on film or videotape or 

by other electronic means: 

Q) the madig equipment was capable 

of making an accurate recordmg, the 

opmtor wascompetent, the qualily offhe 

r8n,rdii,tg is srqJicient m allow the court 

orsd the finder of the fact m dssess the den~eono;of 

flre &dd;nd the it~fenien~er, 

and the reeordmg is accurate and is not 

altered; 

(3) each voice on the recording is 

identified; 

(4) Ihe defendnnt, the ntfomeysfor each 

party, end the expert wtttresses for each 

party are afforded an appartunily to view 

a recardmg before a B shown m the 

comrmm; 

(5) beforegiving iris testimony, the child 

w.as placed under onfh or nus otheMise 

adinmished in a manner npprapriare to 

the child's age w~d~t~oturify to testify 

tm111fuIly; 

(6) the connfi,rdsfrom the recordiug or 

~hrough an in CQt,WO e.umttnatian of the 

child that dte child was co,rylete~lt to feslify 

at the iiw the recording IS@ made; and 

(3 only one confirtuous recording of the 

child NUS wade the ~tecessity fsrpwses 

in rhe recordi,igs or for mult[ple recordnrgs 

is esrnblrslred at trial. 

(c) A~aco~npiairrtita~ke~~pledorna indrcttnewr 

rdnrned ehorghg the defendat~t, on 

tlre motion ofthe atlormy represenling the 

sme, the court may orderfhat thedepmtion 

of the childbe taken outside of the courtroom 

in the same mnmrrpr ar a deposition lnuy be 

taken in a nd matter. A deposition taken 

under this sctbsenimz is admissible into 

evidence. 

Sec. 5. (4 NI the >notion of the attorney 

repreventijg the sate or the attorney repre- 

serdiq the defeirdaantandon afinditg by the 

tnhr court that fie foilow~ltg reqairelnelrrs 

hove been sabsmntially satisfied, the record- 

ing of an om1 statement of the child made 

b&re a mwplainr has been fled or on illdielntent 

rerunled chargiug my person with 

an offense towJtich this~rfiele applies isad 

misrible irno evidence if: 

(I) no alronley orpeace o&er nrrrpresent 

when ihe slatcment was made; 

(2) fhe rcewdn~g is both vismlundaurnl 

and is reewded mfilrn or videoiape or 

by other electronic means; 

(3) fhe recmding equipment w capable 

of making an accurate recording, the 

operaior of fheeqmpme~~t ws compeent. 

the qwlily of the recordrng is srqJicient to 

allow the coun orld thefi?tder offoct to 

-assas the demeanor of the childand fhe 

intenietver, and the recordi~rg is accurate 

and has nor been ahered. 

(4) the statement ws ,lot made if1 

mpowse to questioning calculakd lo lead 

the clu'ld to make a particular statement; 

(5) every voice m the reeord~ng Is 

idenriftd; 

(6) theperson mIducti,lg the 1nteMMew of 

the childin the recordr~g is =pert rrt the 

handling. tr~amient, andinvestigalio~t of 

cl~ild abuse cases, present at the pmceedwg, 

called by the stnte aspanof the 

state's mse in chief to testify at trial. and 

subject to ocm-anmination; 

(3 imn~edidely afier the complaint ws filed or on irtdrdzt~eiit rehtn~ed charging 

rlm defs~~dmrt nith om, ofem to w,hich this 

article applies, the attonre), represmng 

the state ,rotifiedti% men, the defendant, 

and Be attorney represezlting tize defendant 

of the aixteme of the rccordi~~g and 

thnt rherecmdingmnay be wednt fhctrial 

of file 0Jptse; 

(8) 1/86 def~ndmit, the attorney for (ite 

defendnt, and the qen uihrsses forthe 

defendmt were o.rdcdan opponunily to 

view the record~ltg before ii is offerediftto 

evidence and, if@ proceeding n m reqested 

as ~roviiied by Subrection Ib) of 

this sectton, in proceeding conducted 

before a district counjudge but outside 

fiepresence ofthejury were nffmdedan 

opportunily to cross-examine fhe child as 

providedby Subrection (b) of thissaction 

from any time irnmedreteiy follmvi~~g the 

JiIitrg of the cornplaint or the retr(rtting of 

on i~rdict~nexi cirargirsg the defendon1 with 

an @erm to whidr this anicle applies until 

the dote and trial begins; 

(9) the recording of the cross-examinntion, 

if there is one. is admissible wider 

Subsectiw~ 0 of this mlmn: 

(i0) befmegivi~rghis tutirnony, the chiid 

~mspinced rmder oath or ws orkenvise 

odmlshed in o manner appropriate to 

the citildb age and n~oturify to testify 

trthh$~lly; 

(11) the corrrtfindsjbm the recordirrgor 

through an in mrnera e.ra!ni~mtion of the 

ddd char the dtiM EWS compefenrrofestfi 

at the rim NNlr tire recording was made; 

and 

(12) or@ one mntiuuous recording o/'the 

child war made or the nerrssily forpauses 

in the recorduzgs or for maitiple reedings 

has been established at trial. 

@) 01 the molioa of the athrrney representing 

the defendant, a district court may order 

tWBe cross-exmimtion ofthe child be taken 

and be recorded before the judge of that cam 

at any time until a remrdittg tirade in accordance 

with Sub~ectim (a) of this sect1011 has 

been introducedinto eviderce at thetriol. On 

afindmg by ihe trial coun that rhefollnwing 

reqrrirunents wre satisfied. the recording of 

the c.-om-examination of the chi/< is admissible 

into evidence and shall be viewed by the 

/maw offact only afrer thefinder offact 11s 

viewd the recording authoriced by Stibsecnon 

(0) of NtjE section if: 

(I) the recording rs both visuaim~daural 

and is recorded on film or videotape or 

by otlter elzcfronic lrren~ls; 

(ZJ Ute recordrng equrpmenf war cap& 

of makizlg 01, amurnre recording, the 

opernror of the equipnrenr MW mmpdent, 

the qualify of the reearding rs sufln'ent to 

allow the court arid thefinder of fad to 

assess the demeanor of the childand the 

attorney reprererrting the defefidattr, and 

thereeordrngbacnrrnreo~dhncnot been 

oltered; 

(3) stwry voice w tire recording is 

identified; 

(4) thedefedmt, theattorney representing 

the defendant, the atmey TepreWIti,q 

the stare, and the apert wimesses for 

thed&ndmt and thesfate wnereafforded 

am opponunily to view the recording 

before the trio1 bezm; 

(5) the child- placed lteder onfh before 

the ems-examinatio~z began or war otherwise 

ndnmnisltedin a manner appropriate 

to tile child's age end maturity to testify 

rrutl~~liy: ad 

(6) only orreconti?llwus recordi~tg of tl~c 

child nw made or tire necessityforpnu~es 

in the recordlrlgs or for multiple recordings 

tsw esmbiishcd at trial. 

(4 During crou-eran~i~~iztior~ under Snbsection 

(b) of this sechort, to tlte extent pmcrinrble, 

mdy a d~stricfcounjudgc, tltennonrey 

represenling tlre defendant, the anonrey 

reprecenting the state, persons 11ecessarY to 

operate the eguipme~~t, and any other per so^^ 

whose presence n,ould contribute to tile 

wdfar~ and well-being of tile child may be 

present 111 the room with tke cl~ildduring iris 

tatinrony. Only 111e attornew and the judge 

may qrtesrion flre ci~ild. To Ule enerft practicable, 

theperm~s operating the eqrripnlettt 

shoil be confined to an anjncent room or 

behind a scrca or mirror tliat permits the111 

to see and hmr the childduring his testi~mny 

but does rtm pennit the child to see or hear 

them. 7be court~hailpermittl~e defendant to 

obsenje and hear the testinroxy of the cldld 

and to cotr~mut>imte mnrempornneorisly with 

Iris anonfey during perrods of recess or by 

aadio mrrtort, butshallnltentpt to mare thot 

the child conaot bear or see the defendant 

(d) Under SgbsecIion @J of this section the 


district corm /nay set any other conditions and 

lirnitarions on the raking of the crossexamirultion 

ofo child that ilfmds just md 

appropriate, taking into consideration the interm 

ofthe child, the rights ofthe defendanr, 

and any other reievantfnctors. 

Sec. 6. If the coua orders the testimony of 

a child to be taken under Section 3 or 4 of 

this article or ifthe corinfmdF the tesritnony 

ofthe child taken under Seerim 2 or 5 ofthis 

arlicle is admissible into evidence, the child 

may not be required to testify in court at the 

proceeding for which the testimony was taken, 

unless the coun fttds there is good cause. 

Sec. 7. 1% making any detennitrntio,~ ofgood 

enuse under this onicle, the mn shd consider 

the rights ofthe defendant, the interesu 

of the child, the relotiomhip ofthe defendant 

to the child, the chorocterorrd durorion ofthe 

olleged offense, any cotrnfir8ding related to 

tlte amilobilify ofthe child to testify, the age, 

mtarity, and enrotional ~tobiiiq ofthe cldld, 

the time elnpsedsincellre alleged offeme, and 

any other rele~,antfactors. 

See. 8. (4 In innking a deternti,iotio,t qf 

una~ailnbiliry under this anicle, the court slid 

consider reiewnt fnctors incir,diwg the relationship 

of the defenrlnnt to the child, the 

clrnracter at& dworion qftlte olleg

adopted by the health care agency or 

facility and is conducted in accordance 

with Subsection (d) of this section. 

(g) A porienr m y be required 10 be testedfor 

AlDSor HIVin/ecIion, anti6odies lo HIV. or 

infecrion wirh any other proboble caruorive 

agent ofAIDS ifmedical procedure is to be 

performed on rhe parienr that could expose 

health care personnel lo AIDS or HlVinfec- 

rim, aerordi,tg to Terar Board of Healrh 

guidelines defming the condirions that con- 

srirute possible exposrrre to AIDS or HIV 

infedion. and if there is suficienr rime lo 

receive rise rest result before theprocedure is 

mduned. 

SECTION 5. Subsection @), Section 9.03. 

Communicable Disease Prevention and Con: 

tral Act (Article 4419b-1. Vernon's Texas 

ed to read as follows: 

(b) A test result may be released only to: 

(I) the department under this Act; 

(2) a local health authority if reporting is 

required under this Act; 

(3) the Centers for Disease Control of !he 

United States Public Health Service if 

reporting is required by federal law or 

regulation; 

(4) the physician or other person author- 

ized by law who ordered the test; 

(5) a physician, nurse, ar other health care 

personnel who have legitimate need to 

know the test result in order to provide for 

their protection and to provide for the 

patient's health and welfare; 

(6) the person tested for a person legally 

authorized ~1 consent to the test on the per- 

son's behalt 

(7) the spouse of the person tested if the 

person tests pasitive far AIDS or HN in- 

fection, antibodies to HIV, or infection 

with any other probable causative agent 

of AIDS and the physician who ordered 

the test makes the notification. This sub- 

division does not provide a duly to notify 

the spouse, and a cause of action does not 

arise under this subdivision forthe failure 

to make that notification; and 

(8) ifrhe persot8 is tested as required by 

Anicle 21.31. Code of Cril~riflnl Pro- 

cedwe, the victim ofan nlleged offume 

lisred in that nrricle co,rmrirred by rlle 

person tesred. nre owl shall norify the 

vicrim of rlze olieged offense of the re- 

quirrmetm oflhis Act under Illis secrion. 

SECTION 6. (a) The change in law made by 

this Act applies only to an offense committed 

on or after the effective date ofthis Act. For 

the plrpores of this section, an offense is cant- 

mitted before the effective date of the Act if 

any element of the offense occurs before the 

effective date. 

(b) An offense committed before the effec- 

tive date of this Act is covered by the law in 

effect when the offense was committed and 

the former law is continued in effect for this 

purpose. 


I, 1987. 

H.B. 2220 

H.B. 2220 ame?ds Article 4.14 C.C.P. to 

give municipal courts authority to forfeit bonds 

and enter final judgments in forfeitures in 

criminal cases of which it has jurisdiction. 

9/1/87 

H.B. 2449 

H.B. 2449 amends Article 29 C.C.P. to 

provide for continuances on "holy days" for 

any party or juror in a criminal case. 9/1/87 

S.B. 26 

S.B. 26 amends Article 42.01 C.C.P. pro- 

viding items (21) which must be contained in 

a judgment in a criminal case. 8/31/87 

S.B. 43 

S.B. 43 amends Article 44.29 C.C.P. to pro- 

vide that if a case is reversed for punishmenl 

error only, then on remand only the punishmenl 

phase shall be retried. Expands the evidence 

admissible on retrial to ensure full presentation 

of facts to jury. Does not apply to capital 

murder cases. 8/31/87 

SECTION 1. Anicle44.29, Codeof Criminal 

Procedure, 1965, as amended, isamendcdto 

read as follows: 

An. 44.26. EFFECT OF REVERSAL. (aJ 

Where the court of appeals or the Court of 

Criminal Appeals awards a ncw trial to the 

defendant OH the basis ofw error in tile guilr 

or bmocence arage ofthe rrioior or rhe bmis 

oferrors in botlt rhe rrrilt or innocence slope 

(c) nlis seclion does not apply to conviclims 

wder Smlion 19.03 oftlte Penal Code. Ill 

such e m , the cause slrali standas ir ivould 

have stood in care the new trial had been 

granted by the court below. 

SECTION 2. Subsection @), Section 2, 

Article 37.07, Code of Criminal Procedure, 

1965, as amended, is amended to read as 

follows: 

(b) Except as provided in Article 37.071, if 

a finding of guilty is returned, it shall then 

be the responsibility of thejudge to assess the 

punishment applicable to the offense; provid- 

ed, however, that (1) in any criminal action 

where the jury may recommend probationand 

the defendant filedhis sworn motion forpro- 

bation before the lrial began, and (2) in other 

cases where thedefondant so elects in writing 

before the commencement of the "air dire ex- 

amination of the jury panel, the punishment 

shall be assessed by the same jury, except as 

provided in anicle 44.29. If a fmding of guilty 

is returned, the defendant may, withthecon- 

sent of the altorney for the stale, change his 

eleclion of one who assesses the punishment. 

S.B. 185 

S.B. 185 amends Article 17.16 C.C.P. to 

allow for discharge of a surety shows to the 

court that the defendant is in custwly elsewhere. 

Alio detail$ thc procedure fur aurrcndcring 11 

nrincitxd and rcts out pruvisionr fur retnittitur 

Hfter forfeiture. 6/20/87 

S.B. 762 

S.B. 762 amends Article 44.01 C.C.P. to 

allow an appeal by rhe State after trial on points 

of law as cross-points of the defendant's appeal; 

also allows the State to appeal certain ill- 

terlocutory orders-including suppression 

orders and dismissals. Provides for reasonable 

bond for the defendant during the pendency of 

the State's appeal. Requires approval of con- 

stitutional amendment by the voters. Effective 

upon adoption of SJR 34 by voters. 

SECTION I. Aniclc44.01, CodedCriminal 

Procedure, is amended to read as follows: 

Art. 44.01. APPEALBYSTA7E. (a) 7lnrestare 

is enritled to appeal an order ofn court in n 

crirnittnl case iftlte order: 

(I) dismisres n?t brdidnmr, i,Ifon,rarion, 

The dates of CDLP's Jury 

;Seminar have been changed 

114-16, 1988 insteadof 

briginally announced 

hderal Criminal 

heldjn Dallas on December 10 and 11. 


or compiaint or any portion ofan itldictmenr, 

irfonrurtion, or cawlaint; 

(2) arrests or rnod@es a judgment: 

(3) grants a new trial; 

(4) s~rainraclaimoffonnerj~~pardV;or 

(5) gramornotion tosrpprmevidenee, 

a confession, oran admissi~~r. $jeopardy 

has not attached in the m e nnd ifthe 

prosecuting attorney certifies to the trial 

cow that me qjml is not r&n for tlre 

purpose ofdelay and that the evidence. 

~~&essian, or admission is of~ubstarntiol 

itnponawe in the case. 

(b) Ike #tare is entitled lo appeal a s enm 

in a ruse 011 rhe ground that the sentence is 

illegal. 

(c) n~estate iseatitled to appeals ruling on 

a qrreslion of low iftlte dcfenndant is conviaed 

"I rhe cnse and appeals the judgmnt. 

(d) ntc prmecutirtg anontey may not maki 

an appeal under Sitbsection (a) or (b) ofthis 

article loter than the 15th dw ajter the dare 

on d~iclz the order, rnlinp, or sentence to be 

nppealed is entered by the rorR 

(4 Ike stare is enritled to a stay in theprocedngs 

pendtnglhedisposil:~~~ of an appenl 

under Subsection (a) or (bl of this article. 

(fj llte court ofuppeals shnllgiveprecedence 

in its docker to an appealfiled under SII~PCtion 

(a) or (b) ofthis onicle. mlhe state sfcmll 

poy all costs of appeal under Subsection (a) 

or (b) of this article, other rhan rhe cost of 

attan& feesfor the defendant. 

President's Report 

conti~zuedfront page 3 

of Directors adopted fhe resolution. The 

article stated that Judge Bork, ". . . has 

not displayed a concern for the individual 

rights of United States' citizens essential 

and necessary for a justice of the Supreme 

Court. " 

As your President, I have expressed cer- 

tain reservations about whether or not we 

should become involved in various issues. 

It might appear to some of the Board and 

some of the membership particularly the 

opposition to Judge Bork, that I might be 

either adverse to the action of the Board 

or perhaps might be too cautious or con- 

servative in my view toward what we 

should involve ourselves in as an associa- 

tion. This I respectfidly submit is a mis- 

conception, for the welfare and furtherance 

of the purposes of our organization are 

paramount to me. 

When I took over the helm of T.C.D. 

L.A., I did so with the commitment to 

render some meaningful service to our 

association and to the public in the further- 

14 VOICE for the Defense / November 1987 

k) Ifthe stafeappealsp~~~o Ibis article. 

and the dejeenndam is on bail. he shall be 

permitted fo remuin at large on the existing 

bail. If the dejan&nt is in custody, he is 

entitled to rwrmtable boil. as ororidedbvlaw. 

personal bond. 

ojo court of appeals in a criminal mse. 

(i) 7n this article, "prosenrtiilg attonrey" 

meaes the county attorney, district attorney, 

or crtmitd district attontcy who, has the 

primary re1pasibiliryofpro6enrtit1g cases in 

the corn hwrriwg the cose and does not inflrrde 

ntt assistant prosec~~ting attorney. 

li) Nothing in rhis mi& is to interfere with 

the defendmu's right to appeal under theprocedures 

of Article 44.02 ofthis code. 7he 

defendant's right toappeal under Ankle 44.02 

my be prosecuted by the defendaiit dtere the 

purrishmenr assessed is in accordance with 

Subsection (a), Sectim 3d, Art& 42.12 of 

rhis code, as well as any other punisltment 

assessedin emplrwce with Article 44.02 of 

this code. 

SECTION 2.kl . . Theehanee in law made bv 

this act appiiei only lo the appealof an order, 

a ruling ul law, or a wltencc if #he order, 

ruling, or aenlenre is cutered hy a court on 

anceof the administration of justice. I feel 

a strong obligation to speak out and to act 

in accordance with what I consider my 

mandate to be under the dictates of our 

charter and by-laws. "The President is the 

chief executive officer of the Association, 

and it is his (or her) responsibility to supervise 

and coordinate the activities of the 

Association and to preside at its meetings." 

During this year and in years to 

come, there will he times when I will not 

agree personally in all probability with 

everything that the Board does and vice 

versa, It is essential to the lifeand welfare 

of an organization that we act responsibly 

and in the best interest of the general membership 

and the purposes of our association. 

It is my sincere belief that we did so 

in our resolution opposing the confirmation 

of Judge Bork. 

A word of caution I believe is in order 

and that is that when ideas and subjects 

arise that we in theemotion of the moment 

consider we should do something and do 

it right now, we rightfully must reflect on 

the matter and evaluate it fuU circle as we 

did on August 29th. 

Before closing, we might reflect on these 

or after the effective dale of this Act. 

@) The appcat of an order, ruling of law, or 

sentence enlered before the effective date of 

this Act is covered by the law in effect when 

theorder, ding, or sentence was entered, and 

the former law is contbued in effect for this 

PU'pOSe. 

SECTION 3. Thia Act takes effect on the 

adoption of theamendment to theTexas Constitution 

proposed by S.I.R. No. 34, 70th 

Legislature, Regular Session, 1987. If that 

amendment n not appmved by the voteas, Ihis 

Act has no effect. 

S.B. 920 

S.B. 920 amends Article 4.14 C.C.P. to raise 

jurisdictional limits of Municipal Courts from 

$1.000.00 to $2,000.00 in City ordinance cases 

and from $200.00 to $500.00 inStateoffenses. 

9/1/87 

S.B. 1422 

S.B. 1422 amends 45.54 C.C.P. to ~ermit 

the Court to assess a special fee not to exceed 

the amount of the fine assessed in a deferral of 

a misdemeanor punishable by fine only and permits 

expungernent of complaints dismissed 

under provisions of this Article. 9/1/87 H 

Next Month-Part I1 

words from a letter I received recently, 

from one of our members. "I hope there 

will always be some of us who realize that 

one can question some of the Supreme 

Court decisions of the last thirty years 

without, necessarily, being a secret ad- 

mirer of the goals and methods of Adolf 

Hitler; just as one can agree with those 

same decisions and not, necessarily, re- 

ceive his marching orders from the 

Kremlin." 

Our Association in the past has had 

growing pains as does any association. We 

havecome a long way since our formation 

and there are many, many more years 

ahead than lie behind us. As our member- 

ship grows and our financial structure 

becomes even more sound, hopefully we 

can look back in years m come and say that 

we have indeed lived up to and furthered 

those purposes that brodght us together in 

the first place and that the administration 

of justice and the furtherance of our system 

will have benefitted and those tights that 

we hold so dear will have been strength- 

ened and preserved for future genera- 

tions.

The DWI Roadblock Dilemma 

An Explicit Neutral Comment Lon Dallas County DWI Roadblocks 

by Ed Mason and Stun Weinberg 

The Dallas Police Department has, for 

the last two years, utilized roadblocks on 

streets contignous to night club locations 

for the purposes of stopping travellers, 

usually at late h~urs, in an effort to arrest 

those suspected of driving while intoxicated. 

The issue presented is the validity 

of Roadblock searches of all vehicles during 

certain specified hours and places by 

leading to the roadblock. The testimony of 

the police themselves reveals that the roadblock 

was constructed to garner all incoming 

traffic so that no one would escape 

once having entered the.appmaches to the 

rotldblock. Additionally, two chase officers 

were assigned to stop and apprehend 

those who attempted to avoid the madblock. 

Therefore the search in question 

teenth Amendments of the United States 

Constitution. However, we are unable'to 

agree with the proposition :m Higbie v. 

State, supra, that peace officers have the 

unquestioned right to stop a person driving 

an automobile for the purpose of examining 

his or her driver's license, but that 

the detention is not lawful when the examination 

of the driver's license is a 

elements of the Dallas Police Department. was a personal search for evidence of in- subterfuge or an excuse for failure to ob- 

These searches are concededly, without toxication, the fact that the traveller was tain a search warrant. Such was not the 

probable cause, prior information, or 

statutory authority, and solely for the purpose 

of detecting the offense of driving 

while intoxicated. No pretense is made that 

the search in questi~n constitutes an administrative 

search solely to checkdriver's 

in an automobiie being only a collateral 

issue. 

The issues are clouded and compounded 

by the rather circuitous opinion of the 

Court of Appeals, Fifth Judicial District in 

Higbie v. Slate, No. 05-86-00188-CX, 

holding of the Supreme Court in Delaware 

v. Prouse, supra Prouse indicated that a 

random stop of a motorist to check license 

and registrations without more, would not 

pass constitutional mustet' for lack of an 

appropriate, factual basis for suspicion 

licenses. The stated purpose of the road- December 10, 1986. Therein, the Court directed at a particular automobile or some 

blocks is to detect the offenses of driving reversed a roadblock search because the 

State advances no chin1 of consent on the officers assigned to conduct the roadblock 

mrt ofunfortnnate travdlcrs vaueht in the were usine the authwitv of Article 6687b. A - 

dragnet. 

Section l? V.A.C.S.,

drivers is not observable at the time of the 

stop. 

When there is not probable cause to 

believe that a driver is violating any one 

of the multitude of applicable traffic and 

equipment regulations, or other articulable 

facts amounting to reasonable suspicion 

that the driver is unlicensed or his vehicle 

unregistered, we cannot conceive of any 

legitimate basis upon which a patrolman 

could decide that stopping a particula~ 

driver for a spot check would be more 

productive than stopping any other driver. 

This kind of standardless and uncon- 

strained discretion is the evil the Court has 

discerned when in previous cases it has in- 

sisted that the discretion of the official in 

the file be circumscribed at least to some 

extent." See Delaware v. Prouse, supra 

at P1400. The Court went on to recognize 

that operating or travelling in an auto- 

mobile is a basic privilege of all citizens, 

and it is a necessary mode of transporta- 

tion to accomplish one's activity in the 

home, workplace, and at leisure. The 

Court further reasoned that were the in- 

dividual subject to unfettered governmen- 

tal intrusion every time he entered an 

automobile, the security guaranteed by the 

Fourth Amendment would be seriously cir- 

cumscribed. As pointed out in Terry v. 

Ol~io, supra, people are not shorn of all 

Fourth Amendment protection when they 

step from their homes onto the public 

sidewalks, nor are they shorn of those interests 

when they step from the sidewalks 

into their automobiles. See Delaware v. 

Prorise, supra, at P.1401. In Prouse, the 

Court clearly held that officers may not 

stop the individual in an automobile absent 

"at least an articulable and reasonable 

suspicion that a motorist is unlicensed 

or that an automobile is unregistered", or 

that either the vehicle or the occupant is 

otherwise subject to seizure for violation 

of law and that absent those articulable 

suspicions stopping an automobile and detaining 

the driver in order to check all 

travellers for driver's license and registration 

violations was unreasonable under the 

Fourth Amendment. However, the Court 

did suggest that a stop of all traffic at a 

roadblock to check for driver's license 

violations would be an alternative to random 

stops. See Delaware v. Prorise, supra, 

at P. 1401. The Court of Criminal Appeals 

has recently held that "while it is true that 

'the pervasive schemes of regulation of 

16 VOICE for the Defense 1 November 1987 

motor vehicle' necessarily leads to reduc- suspecting that he was violating the DWI 

ed expectations of privacy: Califort~ia v. laws, absent some observable conduct in 

Carney, 471 US. at 392, 105 S. Ct. 2070, the operation of the automobile or unusual 

85 L. Ed. 2d414, that regulation does not activity of the Defendant himself? 

dispel such expectations altogether". See The State admits, that the seizing of- 

Chapa v. State, 914-85, April 8, 1987. ficers are operating without any reasonable 

The opinion of the Dallas Court of Ap- suspicion of the Defendant or any other 

peals in Webb v. State, 695 S.W. 2d, 676, person and are in effect, operating a 

indicates a belief by that Court that a broad dragnet to stop all citizens in order to arrest 

constitutional exception to Terry v. Ohio, the few. That the foregoing procedure is 

may exist so long as a balancing test is efficient is unquestioned. Unfettered police 

employed by balancing legitimate gov- conduct is always more efficient, but also 

ernment interest against the degree of always more detrimental to the personal 

intrusion on the Sndividual's Fourth expectations of freedom and privacy en- 

Amendment rights and specifies a three joyed by all citizens. The Supreme Court 

part test. (1) The gravity of the public did not come close to stating that the of- 

concern served by the seizure, (2) The ficers in Brown v. Teras, could stop 

degree to which the seizure advances the everyone in the neighborhood without any 

public interest, and (3) The severity of the suspicion whatsoever, to search for the 

interference with individual liberty. Citing offense of drug abuse simply because there 

Brolvn v. Te.vas, 443 US. 45, 99 S. Ct. was a high frequency of.dmg abuse in that 

2637, 61 L. Ed. 2d 357 (1979). The neighborhood. Such clgrly violates that 

foregoing reasoning is sophistry because mandates of Terry and its progeny, yet the 

it omits the essential inquiry demanded by State urges that it can stop all traffic 

Brown & Terry to wit: "to this end, the to search for evidence of driving while 

Fourth Amendment requires that a seizure intoxicated. 

must be based on specific, objective facts The State is unable to cite any case as 

indicating that society's legitimate interests authority for that proposition and Brown 

require the seizure of the particular indi- v. Terns, supra; stands squarely against it. 

vidual, or that the seizure must be carried If one were to subscribe to the reasoning 

oirtprrrsrmnt lo aplan etnbodying explicit advanced by the State, one would have to 

neutral lintitations on the conduct of in- ignore the clear mandate of Terry and 

dividual oficers. " The Court recognized Brown, that some reasonable suspicion and 

that in some circumstances an officer may particularized information on the in- 

detain a suspect briefly for questioning dividual be in the possession of the police 

although he does not have probable cause officer before the balancing test can be ap- 

to believe that suspect is involved in crim- plied. Otherwise, an automobile indeed 

inal activity as is required for a traditional will have become a "talisman" in the face 

arrest. However, under Terry v. Ohio, of which the Fourth Amendment protec- 

supra, the officers are required to have a tions simply fade away and disappear. See 

reasonable suspicion based on objective Collidge v. New Hampslrire, 403 US. 

facts that tlte individual is involved in 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 

criminal activity. See Brown v. Texas, (1971). If this were not the case, the 

supra. The Supreme Court reversed the question arises as to why there is a distinc- 

Appellant's conviction in Brown, because tion between border searches and other 

the officers had no specific articulable facts searches under the Fourth Amendment. 

ihat gave rise to a reasonable suspicion that See United States 1,. Brignoni-Ponce, 422 

thesubject wasdoing anything in theAlley US. 873, 95 S. Ct. 2574,45 L. Ed. 2d, 

except looking suspicious. The Court noted 641 (1975). Has every street in the United 

that the fact that the Alley was frequented States now become "the functional 

by drug users, standing alone, was not a equivalent" of an international border 

basis for concluding that the Defendant which permits unfettered intrusion of law 

himself was engaged in criminal conduct. enforcement into the privacy expectations 

And so it is with traffic stops pursuant to of the citizens in their automobiles? 

Dallas DWI roadblocks. Under the most In Padgetr I State, No. 

neutral criteria one can imagine, how can 05-86-00341-CR, January 6, 1987, the 

the police cite any particularized conduct Fifth Court of Appeals at Dallas, revisited 

on the part of any driver as a basis for the roadblock scenario and reversed the

cause because the DWI iquad was again 

using the Driver's License Check statute 

as a subterfuge for unlawful searches and 

seizures in violation of the Fourth Amend- 

ment. The facts of the arrest of Padgett, 

are that he was stopped at a police 

roadblock at 2:00 a.m. in the morning, 

rplled down the window, whereupon the 

officer immediately smelled the strong 

odor of alcohol on the suspect's breath. 

Field sobriety tests were conducted andhe 

was arrested for driving while intoxicated. 

However, in the present cases in Dallas, 

the police suffering a rare attack of can- 

dor, have now abandoned the fiction that 

the stops were for any reason other than 

to gain evidence of the offense of driving 

while intoxicafed. The Court in Padgetr v. 

State, supra, recognized that the Court of 

Criminal Appeals of Texas has held that 

"if a license check is not the sole reason 

for a detention, that detention is not 

authorized by a statute and cannot be 

upheld." See Meeks v. Slate, 692 S.W. 2d, 

504. See also Faremi v. State, 558 S.W. 

2d 463. The questions of whether or not 

the stops were a violation of Article 1, See- 

tion 9 of the State Constitution or the 

Fourth Amendment to the Constitution of 

the United States were not addressed in 

Meeks or Faterni. However, it must be 

asked why, if the search passed constitu- 

tional muster even absent statutory anthori- 

ty, was it not upheld on the independent 

constitutional grounds? The Dallas Court 

of Appeal$ is grappling with the wrong 

issue. The roadblocks in question in Dallas 

County do not involve the issues of prob- 

able cause or reasonable suspicion under 

Terry. There is, in fact, no suspicion what- 

soever; only vague statements that at the 

location and time in question, theremight 

he many patrons exiting bars and return- 

ing home, and furthbr, that some per- 

centage of them may be guilty of driving 

whileintoxicated. This was the issue with 

which the Court dealt m Padgett v. State, 

supra, and on which the Court found the 

State wanting. The Court specifically held 

that "while the characteristics of an area 

and previous experience with a certain type 

of violation, such as driving without a 

license, are factors which may be con- 

sidered in determining whether probable 

cause or reasonable suspicion exists these 

factors alone are not sufficient to justify 

the stop in this case." CitingU.3. v. Bar- 

rtard, 553 Fed. 2d. 389-391 (5th Cir., 

1977); Unired Stares v. Brignoni-Ponci, 

supra. The Court noted that had the of- 

ficers had independent information on the 

Defendant himself which would lead them 

to suspect that he was driving while intox- 

icated, they may have had pmbable cause 

to stop him. Defendant submits that the 

Court of Criminal Appeals has held that 

for an investigative stop to be justified, the 

Peace Officer must have specific and ar- 

ticulable facts which, in light of his ex- 

perience and personal knowledge taken 

together with rational inferences from 

those facts would reasonably warrant the 

intrusion of the freedom of a citizen. See 

Henson v. State, 547 S.W. 2d 277; ScI&r 

v. State, 562 S.W. 2d 853; McMillen v. 

State, 609 S.W. 2d 784. Except for the 

more candid responses of the arresting of- 

ficers as to the underlying reason for the 

FEDERAL CRIMINAL PRACTICE 

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oadblock, the facts of Padgeft v. State, 

wpra and the new roadblock cases are 

substantially similar. 

Much mischief has been caused by the 

dictum in Brown v. Texar, supra, that 

absent articulable suspicion, the seizure 

must be carried out pursuant to a plan 

embodying explicit neutral limitations on 

the conduct of the individual officers. The 

commentators and recognized authorities 

in the area of searches are somewhat di- 

vided on the issue. William E. Ringel 

points out that the recent wave of public 

outcry against drunk driving has brought 

about a corresponding increase in the use 

of sobriety check points by the police 

aimed at curbimg the problem. Ringel states 

that, as a general rule, the constitutionality 

of traffic checkpoints has been upheld 

where: (1) the discretion of the officer in 

the field is carefully circumscribed by clear 

objective regulations established by high 

level administrative officials; (2) ap- 

proaching drivers are given adequate 

warning tbat there is a roadblock ahead; 

(3) the likelihood of apprehension, fear, or 

surprise is reduced by a display of legi- 

timate police authority at the roadblock; 

and (4) vehicles are stopped on a 

systematic non-random basis that shows 

drivers they are not being singled out for 

arbitrary reasons. SeeRingel, searchesand 

seizures, arrests and confessions, Section 

11.6(f)(l), 1179.2, Clark Boardman and 

Company. In People v. Deskins, 673 p.2d 

1174 (Kan. 1983), the Kansas Court laid 

down the following rules to be considered: 

"(1) the degree of discretion, if any, left 

to the officer in the field; (2) the location 

designated for the roadblock; (3) the time 

and duration of the roadblock; (4) stan- 

dards set by superior officers; (5) advance 

notice to the public at large; (6) advance 

warning to the individual approaching 

motorists; (7) maintenance of safety con- 

ditions; (8) degree of fear or anxiety 

generated by the mode of operation; (9) 

average length of time each motorist is de- 

tained; (10) physical factors surrounding 

the location, type and method of operation; 

(1 1) the availability of less intrusive 

methods for combatting the problem; (12) 

the degree of effectiveness of the pro- 

cedure; and (13) any other relevant cir- 

cumstances which might bear upon the 

tests." See State v. Deskins, supra at page 

1185. As noted by Ringel and other com- 

mentators, thestate Courts rely in part on 


the decision of the United States Supreme 

Court in U.S. v. Martinez-Fuerte, 428 

US. 543 96S.Ct. 3074,49L.Ed.Zd 1116, 

(1976). Therein the United States Supreme 

Court set forth certain characteristics of 

fixed checkpoints that made them constitu- 

tionally superior to the roving patrol stops 

condemned in other cases. However, it is 

noted that the checkpoint approved by the 

Supreme Court was a border checkpoint 

for illegal aliens and nowhere in the dic- 

tum of that case did the Supreme Court 

approve procedures for temporary check- 

points such as the DWI roadblocks utilized 

by the Dallas Police Department. For a 

complete discussion of State Court cases 

permitting roadblock searches, see the text 

and notes found at Ringel, searches, 

seizures, arrests and confessions, Section 

11.611) and cases collated therein. 

Wayne R. LaFave points out that the 

roadblock for general enforcement pur- 

poses will be upheld only under certain 

limited circumstances. He asserts that the 

Supreme Court has upheld the use of 

reasonably located checkpoints for tbepur- 

pose of questioning vehicle occupants to 

determine whether they are illegal aliens 

but not to search the vehicle for such 

aliens, and the questioning of all oncoming 

traffic at roadblock type stops would be a 

lawful means of checking driver's licenses 

and vehicle registrations. Citing United 

States v. Martinez-fiterte, supra and 

Delaware v. Prouse, supra. See Wave, 

search and seimre, a treatise on the Fourth 

Amendnzent, 2d Ed., Section 9.3(g), 9.5, 

West Publishing Cotnpany. 

LaFave asserts that the purpose of the 

roadblock historically ha8 been to arrest 

suspects for a known crime, not to discover 

evidence of undetected crimes by the hap- 

penstance of visual searches. Thus, he 

points out that roadblocks have been 

upheld where a serious felony was invol- 

ved. In Carroll v. United States, 267 US. 

132, (1925), the Court stated: "It would 

be intolerable and unreasonable if a pro- 

hibition agent were authorized to stop 

every vehicle on the chance of finding li- 

quor and thus subject all persons lawfully 

using highways to the inconvenience and 

indignity of a search. Travellers may be 

so stopped in crossing an international 

boundary because of national self- 

protection reasonably requiring one enter- 

ing the country to identify himself as 

entitled to come in, and his belongings as 

effects which may be lawfully brought in. 

But those lawfully within the country, 

entitled to use the public highways, have 

a right to a free passage withou interrup- 

tion or search unless there is known to a 

competent official, authorized to search, 

probable cause for believing tbat their 

vehicles are carrying contraband or illegal 

merchandise". LaPave opines that one 

distinguishing factor which separates the 

roadblock from the typical terry stop is 

that, by hypothesis, a greater showing of 

exigent circumstances is required for the 

roadblock. See LaFave, Section 9.5, page 

143, supra. He quotes justice Jackson's 

dissent in Brinegar v. United States, 338 

U.S. 160 (1949) as relevant to the point: 

"If we assume, for example, that a child 

is kidnapped and the officers throw a 

roadblock about the neighborhood and 

search every outgoing car, it would be a 

drastic and indiscriminating use of the 

search. The officers might be unable to 

show probable cause for searching any par- 

ticular car. However, I should candidly 

strive hard to sustain such an action, exe- 

cuted fairly and in good faith, because it 

might be reasonable to subject travellers 

to that indignity if it was the only way to 

save a threatened life and detect a vicious 

crime. But I should not strain to sustain 

such a roadblock and universal search to 

salvage a few bottles of bourbon and catch 

a bootlegger." Therefore, LaFave con- 

cludes that roadblocks generally are sup- 

ported by legal authorities only as they 

pertain to the apprehension of very serious 

crimes such as kidnapping, murder, armed 

robbery, or forceable felonies which im- 

peril life. See LaFave, searches and 

kizure, Section 9.5, at Page 144. 

However Section 9.3(g) "Stops pursuant 

to aplan embodying explicit neutral limita- 

tions" leaves the entire question open, par- 

ticularly with regard to DWI roadblocks. 

See LoFave Searches And Seizures, 2d 

Ed., supra. 

THE APPLICATION OF 

TEXAS LAW 

The Dallas Court of Appeals, in its 

efforts to deal with the problem has erred 

in failing to deal with the very nature of 

a warrantless arrest wder State Law. The 

Court of Criminal Appeals of Texas has 

often written on the subject and recently 

has again held that ". . . wefirst point out

that warrantless arrests in this State may 

occur only in the most limited of cir- 

cumstances. The power to make a warrant- 

less arrest is governed by statutes as well 

as case law on the subject. See Lowrey v. 

Srate, 499 S.W. 2d 160 (Tex. Crim. App. 

1973); Arts. 14.01-14.04, V.A.C.C.P., 

inclusive, and Art. 18.16, V.A.C.C.P." 

See Green v. State, 62,002, February 25, 

1987. Since the testimony in these cases 

show that the arresting officers did not 

believe a felony was committed, the 

authority of the peace officers to arrest is 

governed by Article 14.03, C.C.P. (a)(l) 

which provides as follows: "Any peace 

officer may arrest, without warrant: (1) 

persons found in suspicious places and 

under circumstances which reasonably 

show that such persons have been guilty 

of some felony or breach of the peace, or 

threatened, or are about to commit some 

offense against thelaws". It is emphasized 

that the Court of Criminal Appeals meant 

what it said in Meeks v. State, supra, that 

"if a license check is not the sole reason 

for a detention, that detention is not 

authorized by a statute and cannot be 

upheld". Meeks is dispositive of the issues 

herein. No further inquiry is necessary as 

the State has asserted no statutory basis for 

the stop in question, and indeed none exists 

under Texas law. Thus, it is apparent that 

when dealing with the issue of arrest 

without warrant and without probable 

cause, the State of Texas has chosen to pro- 

vide its citizens with more protection than 

that provided by the Fourth Amendment 

to the Constitution of the United States as 

interpreted by the United States Supreme 

Court. Under state law, any arrest of a per- 

son without warrant and without probable 

cause is deemed to be unreasonable per se 

unless it is specifically authorized by 

statutes which are strictly construed, see 

Hunnicut v. State, 299 S.W. 2d 662, 664 

(Tex. Crim. App. 1973). The taskherein 

is made easy by the express assertation of 

the State that the arrests in question ate 

made without statutory authority. That a 

Defendant is actually arrested when he 

enters the roadblock is beyond question. 

Article 15.22, C.C.P., provides that aper- 

son is arrested when "he has been actually 

placed under restraint or taken into custody 

. . .". See also Brewster v. State, 606 

S.W. 2d 325 (Tex. Crim. App. 1980); 

Hoag v. State, No. 94-85, April 15, 1987 

(Tex. Crim. App. 1987). Once the auto- 

mobile of Defendant and his fellow 

travellers entered the restricted concourse 

leading to the roadblock itself, they were 

in fact, not free to leave and any reasonable 

person would have felt that he was under 

arrest at the time. See United States v. 

Mendenhall, 446 US. 544, 554, 100 S. 

Ct. 1870, 1877,64 L.Ed. 2d 497 (1980). 

This is bolstered by. the fact that the police 

testified that two chase elements were stationed 

to apprehend anyone who sought to 

evade the roadblock. Thus, any reasonable 

person would feel that he was not free to 

leave once the police officer was in possession 

of his driver's license, and Defendant 

was not, in fact, free to leave once he 

entered the roadblock. See Florida V. 

Royer, 460 US. 491, 103 S. Ct. 1319, 

1311, 75 L. Ed. 2d, 229 (1983). 

What the Dallas Police Department is attempting 

to do is to create a "DWI profie 

search". Defendant would liken these 

profile searches to the "drug courier profile 

searches" conducted at various airports 

and condemned by the United States 

Supreme Court in cases such as Florida v. 

Royer, supra and Reed v. Georgia, 448 

U.S. 438, 100 S. Ct. 2752,65 L. Ed. 2d, 

890 (1980), among others. The Supreme 

Cona noted in Reed v. Georgia, supra, that 

stops based on such suspicions, "described 

a very large category of presumably 

innocent travellers, who would be subject 

to virtually random seizures were the 

Court to conclude that as little foundation 

as there was in this case would justify 

a seizure". Based on the foregoing authorities, 

the Court of Criminal Appeals of 

Texas has little trouble in repudiating, 

"drug courier profile" cases in Daniels v. 

State, 718 S.W. 2d 702. 

It was the testimony of the arresting 

officers in many cases that upon the detainees' 

lowering of his car window, the 

police officer using his superior olfactory 

capacity detected the "strong odor of 

alcohol" emanating from the suspects 

breath. In this regard, the decision of the 

United States Supreme Court in United 

S~ntes v. Place, 462 US. 696, 103 S. Ct. 

2637,77 L. Ed. 2d 110 (1983) is recommended, 

where the Court held that even 

such a brief detention as detaining a 

suspect's luggage long enough to have it 

sniffed by police dogs trained to alert to 

narcotics might m some instances be 

justified by less than probable cause, but 

even such detention, must be justified by 

"specific and articulable facts warranting 

a reasonable belief that a traveller's lug- 

gage contains narcotics." It follows that 

in the roadblock situations, such a brief 

detentionmust be justified by specific and 

articulable facts warranting a reasonable 

belief that the traveller's automobile con- 

tains an intoxicated driver. See United 

States v. Place, supra. In repudiating the 

"dmg courier searches" at airports, in 

Daniels v. State, supra, the Court of 

Criminal Appeals of Texas, cited the opin- 

ion in Meeks v. St&, supra. 

Lastly, it is submitted that the evidence 

of intoxication was seized as aresult of an 

illegal stop and should be suppressed. See 

Wong Sun v. UnitedStates, 371 US. 471, 

83 Supreme Court, 407, 9 L. Ed. 2d 441 

(1963); Daniels v. Sfate, supra. As pointed 

out by the Honorable Emett Colviu, in a 

memorandum in a separate case dealing 

with the same subject, "legislative 

authorization of such roadblocks, after 

hearings and evidence as to appropriate 

guidelines may be called for. But this is 

for the legislature, not the Courts." If the 

police in your jurisdiction, emboldened by 

the success of their Dallas brothers, initiate 

DWI roadblocks, it is hoped that you find 

these thoughts helpful and persuasive in 

dealing with your local Courts until relief 

can be had from the Court of Criminal 

Appeals. 

The recent opinion of the Court of 

Criminal Appeals of Texas in Webb v. 

State, Number 1008-85, October 7, 1987 

has done little to clear up this muddled pic- 

ture. Two judges, Davis and Campbell, 

would follow the argument usually ad- 

vanced by the state that roadblocks are 

constitutionally permissible. The opinion 

did not address the application of state law 

to the facts of a roadblock. However, it is 

noted that Judges Onion, McCormick, and 

White, concurred only in the result. Judges 

Clinton, Miller, and Duncan, disagreed 

with the court's analysis that the roadblock 

searches may be constitutionally permis- 

sible, and concurred only in the result. 

Judge Teague concurred only in the result 

and held that the State's PDR should have 

been refused. The next roadblock case may 

be the one that answers these questions; 

however it may be sometime before such 

a case reaches the Court of Criminal Ap- 

peals. 


IN THE COUNTY CRIMINAL COURT NO. 1 

OFDALLASCOUNTY,TEXAS 


Memorandum of Law 

by Emmett Calvin 

329 (Cr. App. 1985). Thus. f~lddetentions in 

Texas are valid only if supported by "specific 

THE STATE OF TEXAS * 

VS. * NO. 1234567 

JOHN DOE I 

MEMORANDUM OF LAW 

As a prelude, in connection with this Motion 

to Suppress the fruits of this roadblock arrest, 

the State has In the past relied upon Rev. Civ. 

Stat. Am. Art. 6687b, sec. 13, asauthority for 

such roadblocks. Meek v. Slate, 692 S.W.2d 

504 (Tex. Cr. App. 1975) noted thaf "The continued 

viability of this statute is in question in 

light of the decision of United States Supreme 

Court in Delaware v. Prouse, 440 US. 648 

(1979):' 

and arti~nlahle facts, which ia light of his experience 

and general knowkdgc, reasonably 

warrants sucha stop.'! lhompson v. State, 533 

S.W.2d 825, 826 (Tex. Crim. App. 1976). 

Nowhere in this format do we arrive at any 

authorized "crap shoot" as suggested here. 

namely, that we can catch a percentage of 

drunks in this manner. There certainly is no 

evldence thal as to this defendant, the police had 

any specific or articulahle facts as to criminal 

activity prior to the detention, if indeed the facts 

later developed. 

It is understandable why there was prior 

relianceon Sec. 13, for the State is well aware 

that under state law any arrest of a person 

without warrant and without probable cause is 

". . . persons in automobiles on public 

roadways may not for that reason alone 

have their travel and privacy interferred 

with at the unbridled discretion of police 

officers." Delaware v. Prouse, supra, 

at 663. 

The simple approach of the DalIas police in the 

recent past has been to set up the roadblocks 

under their formula, make the stops on the 

theory that these were merely stops solely for 

a license check under Sec. 13 and then lie in 

the courtroom as to the purpose of the stop. 

They did not meet withsuccess when an officer 

would "slip" and tell the truth as in Webb v. 

Srate, 695 S.W.2d 676 (Tex. App. Dallas, 

1985, pet. granted) nor even when they lied. 

Higbie v. State. No. 05-86-00188 CR (Tex. 

App. Dallas, 1113187). 

It now appears that the State has come out 

of the closet and chat the Dallas police will 

testify that, without regard to a Texas State 

statute, the roadblock detentions are executed 

for the purpose of catching D.W.I. suspects. 

With this testimony comes an array of statistics 

to reflect that the roadblock outwaghs the individual's 

right to privacy; the degree to which 

such a roadblock. as ornosed to a less intrusive 

mahod, advance% the public interests; and linally, 

whether thc vdid puhllc interat i\ sullicicnt 

to justify the partic;lar intrusion committed. 

This evidence is framed in the balancing test 

suggested in the dicta of Prouse and Brown v. 

Tm.433 US. 47,49 (1979). Onecannothelp 

but wonder whether we can rely upon such 

evidence produced by the same officers that 

have been lying about the purpose of such stops 

until recently. However, reliability of the 

evidence would appear to pale in the face of 

a more fundamental problem wilh these detentions, 

Emmett Colvin, born Stuttgarr, Arkantsas, 

July 18, 1918; admifted to bar, 1942, 

Arkansas; 1948, Tennessee and US. District 

Court, Easfern District of Arkansas; 

1960, Texas; 1961, US. District Court, 

Wesrenn District of Texas; 1962, U. S. District 

Cortr% Northern District of Texas and 

U.S. Court ofAppeals, 5th Circuit; 1963, 

US. District Court, Southern District of 

Texas; 1965, US. District Court, Eastern 

District of Texas and US. Supreme Couc 

1967, U.S. Court of Appeals, 10th Circuit; 

1970, US. Court of Appeals, 8th Circuit. 

Education: Arkansas State Universiry; St. 

huis Universify and Universiry ofArkansas 

(LL.B., 1942). Delta Iheta Phi. Assisrant 

Districf Attorney, Dalh, 1961-1963. 

Dean National College for Crimi~tal Defense, 

1982-1984. Member: State Bar of 

Texas (Chairman, Criminal Law Section, 

196g1967); Dallm Counry Criminal Bar 

Association (President, 1970); Texas 

Criminal Defense Lawyers Association 

(Presidenk, 1977-1978); National Associahen 

of Criminal Defense Lawyers (Director, 

1977%). (Board Cert$ed, Criminal 

Lnw, Tern Board of Legal Specialization.) 

First, we elimmate the suggestion that this 

was merely an investigative stop. Under Texas 

law, the one immutable reauirement for making 

on investigative stop is that the officer have 

solnc reaionahlc basis for belicvina - that the surpect 

isa~nnwtcd with current criminal activity. 

I TEXAS CRIMINAI. I'XALTICE GUIDE. D. 

10-9, citing Gearing v. State, 685 S.W.2d 326, 

deemed an unreasonable seizure unless it is 

specifically authorized by statute and these 

statutes are strictly construed. Honeycun v. 

State, 299 S.W.2d 662,664 flex. Crim. App. 

1973). If. as here, it is claimed that the situation 

authorizes an arrest without warrant in 

Texas, then it must be shown that the authority 

for such arrest comes squarely within some 

classification Bstahlished by statutes anthorizing 

such arrest, if not, the authority does not 

exist. Heath v. Boyd. 175 S.W.2d 214, 141 

Tex. 569 (1943): Hmeycan v. Stare, supra. The 

legality of warrantless arrests are governed by 

state law, pmvided the restrictions on right to 

arrest are at least as stringent as those imposed 

by the United States Constitution. Milfon v. 

State, 549 S.W.2d 190, 192 [Tex. Cr. App. 

1977). 

Article 15.22 provides that a person is arrested 

when "he has ken actually placed under 

restraint or taken into custody. . . ." Thus, it 

is fundamental that when one's liberty of movement 

is restricted or restrained, the arrest is 

complete. Brewster v. State, 606 S.W.2d 325 

(Cr. App. 1980). The power of a peace officer 

to arrest is set forth in the statutory scheme of 

Article 14.03, C.C.P. andin this authorization, 

the State can findno support for the action taken 

here. Without engaging in the jargon ofprouse 

and Brown, the plain response to the State's 

position here is that, there being no specific 

statutory authority for the arrest here, no 

authority exists. The arrest being illegal, the 

fruits thereof must be suppressed, under the 

State Constitution, as well as the4th and 14th 

Amendments to the Constitutionof the United 

States. 

The Texas design that the matter of power 

of arrest be controlled by statute is indeed 

wholesome. Our historical polrcy in the premises 

would appear to balk at the concept here 

urged-that the anthority to arrest may stem

solely from thelips of the officers effecting the authorization of suchroadblocks, after hearings not the courts and, cenainly not the same police 

arrest< Thls is not to say that a future statutory and evidence as to appropriate guidelines may officers who conjured up the guidelines. 

des~gn may not be appropriate. Legislative he called for. But this is for the Legislature, 

NO. W-11111-E 

THE ST~TE OPTEXAS LN THE COUNTY 

CIWlNAL COURT N0.4 

VS 

IOHN DOE DALUS OOUNIY. TEXAS 

In a Motion to Suppress John Doe 

challenges the constitutionality (4th 

Amendment, U.S. Constitution and Art. 

I: Section 9, Texas Constitution) of his 

arrest for driving while intoxicated 

(V.A.C.S. 6701-L1) after having been 

stopped by uniformed members of the 

Dallas Police Department conducting a 

"Driving While Intoxicated/Drivers 

License Checkpoint Operation'' in the 

8400 block of Greenville Avenue in 

Dallas. Unlike the rationale advanced by 

the State and rejected by the Dallas Court 

of Appeals in Webb v. State, 695 S.W. 2d 

676, (Tex. App.-Dallas 1985 pet. granted) 

and Padgerr v. State, No. 05-86-00341 

CR, (Tex. App.-Dallas, January 6, 1987) 

andHigbie v. State, No. 05-86-00188 CR, 

(Tex. App.-Dallas, January 13, 1987), in 

this case the State seeks not to justify the 

stop ("seizure") of thedefendant by rely- 

ingupon Art. 668% Section 13, V.A.C.S. 

Therefore, the Webb, Padgetr and Higbie 

cases (supra) are not controlling. Though 

the court has been supplied with an excel- 

lent brief by defense counsel, Ed Mason 

and an amicus brief by Emmett Colvin, 

neither the briefs nor my briefing efforts 

resulted in a reported Texas case which 

specifically resolved the following issues: 

(1) were the Driving While Intoxicated1 

Drivers License Checkpoint Operations 

enacted by the Dallas Police Department 

on June 18, 1986, followed on the date in 

question (see attached Memorandum by 

Billy Prince, Dallas Chief of Police, and 

Dallas Police Department guidelines, such 

being for aU purposes a part of the opinion) 

and (2) are the guidelines consistent with 

the holdings of the Supreme Court in Dela- 

More v. Prouse, 99 S.Ct. 1391 (1979) (ran- 

dom and discretionary stops made to check 

for license and vehicle registration un- 

constitutional), Texas v. Brown, 103 S.Ct. 

1535 (1983), (random stop-and-identify 

An Opinion 

by Judge I? Harold Entz, Jr., Dallas 

apparently addressed the issue in a reported 

case, other states have analyzed the ques- 

tion with inconsistent results. 

A number of states have held roadblock 

stops apparently similar to the instant case 

unconstitutional. 

Among the states following this line of 

reasoning are the following cases: Jones 

v. State, 483 So. 2d433, (Ha.-1986), Stare 

V. Koppel, 499 AZd 966 (N.H.-1985), 

State v. Smith, 674 P2d 562, (Okla. Crim 

App.-1984), State v. Olgaard, 248 

N.W.2d 392 [S.D.-1976), Stare v. Crom, 

383 N.W. 2d461 (Neb.-1986) and Nelson 

v. Lane County, 720 P 2d 1291 (Or. 

App.-1986). 

On the other side, a number of statas, 

post Prouse, supra, have condoned the 

constitutionality of roadblock stops similar 

statute held unconstitutional), United States to the instant case. 

v. Brignoni-Ponce, 95 S.Ct. 2574 (1976) Among the states following this line of 

(random stops of vehicles near Mexican reasoning are the following cases: State v. 

border to detect entry of illegal aliens held Supr. Ct. in and for County of Pima, 691 

unconstitutional) and United States v. P 2d 1073 (Ark-1984), People v. Con- 

Maninez-Fuentes, 96 S.Ct. 3074 (1976) way, 135 Ill. App. 3d 887, 482 N.E. 2d 

(permanent roadblocks checking for illegal 437 (1985), Stare v. Deskins. 673 P 2d 

aliens from Mexico held constitutional). 1 I74 (Kan.-1983), Little v. Stare, 479 A 

It is conceded by the State that prior to 2d 903 (Md.-1984), Cornmoltwealth v. 

the contact with the.police officers at the Trimble, 483 N.E. 2d 1102 (Mass.-1985), 

checkpoint there was no driving conduct State v. Coccomo, 427 A 2d 131, (N.J. 

observed by the officers that would give Super-1980), People v. Scott, 473 N.E. 2d 

them probable canse sufficient to justify 1 (N.Y.S. 2d-1984), State v. Martin, 496 

their detention of the defendant for any A 2d442 (Vt.-1985), Kinslow v. Common- 

reason whatsoever. While not conceding wealth, 660 S.W. 2d 667 (ICY.-1983), State 

the constitutionality of the guidelines in v. Perpich, 590 F. Supp. 1057 @.C: 

question, the defense concedes and the Minn.-1984), State v. Garcia, 500 N.E. 

record exhaustively shows that at the date 2d 158, (1nd.-1986), Lowe v. Common- 

and time in questlon the operation which wealtlr of Virginia, 337 S.E. 2d 273 

occasioned the arrest of the defendant, (Va.-1985), cen denied 106 S.Ct. 1464, 

among others, scrupulously followed the and Fury v. City of Seattle, 730 P 2d 62 

guidelines. (Wash. App.-1986). 

Therefore, without the benefit of a war- Though the circumstances-of neces- 

rant of arrest nor any statutory authoriza- sity-differed from state to state affecting 

tion to justify thestop, succinctly the issue the decisions, there were a number of 

to be determined is as follows: are the recurring factors consistent with eachline 

Dallas Police Department Driving While of cases. Generally, those cases invali- 

Intoxicated/Drivers License Checkpoint dating the roadblock stops justified their 

Operations guidelines "reasonable" in a decision upon the following areas: inade- 

federal and state constitutional sense? quate prior warning to motorists that road- 

Though Texas appellate courts have nbt block was ahead, decision to establish 

November 1987 / VOICE for the Defense 21

oadblock not made by an officer in a su- 

pervisory or command capacity, methods 

of conducting roadblock not spelled out, 

insufficient police presence at roadblock, 

inadequate lighting at roadblock, and no 

showing of advance publicity in media. In- 

terestingly, the Arizona Supreme Court 

held an enforcement roadblock unconstitu- 

tional because of the way in which it was 

conducted, and the Court proceeded to 

stateguidelines which, if followed, would 

be constitutional. See State ex rel. Ekstrom 

v. Jusrice Corrrl, 663 P 2d 992 (Ark.- 

1983), Slate v. Superior Cowl, 691 P 2d 

1073 Ark.-1984) upholding roadblocks, 

and Kitin v. Ronstadt, 716 P 2d 1060 

(Ark App.-1986) roadblock held wnstitu- 

tional. Illustrative of the same point is the 

evolutionary roadblock experience in Mas- 

sachusetts. See Commonwealth v. 

McGeoghegan, 449 N.E. 2d 349 (Mass.- 

1983)" Commonwealth v. Annaral, 495 

N.E. 2d 276 (Mass.-1986) where road- 

block followed guidelines was constitu- 

tional and Commonwealfh v. Trumble, 

supra. 

Though the guidelines in question in this 

case include a driver's license check in ad- 

dition to an intoxication determination of 

the driver, the experience of Illinois is il- 

lustrative. The fact that the oheck was an- 

nounced as a driver's license check did not 

render the stop unreasonable when intox- 

icated drivers were detected as long as the 

site, time, etc. were selected by super- 

visory personnel, vehicles stopped pur- 

suant to published guidelines, sufficient 

presence of uniformed officers, police 

vehicles, flashing lights, etc. See People 

v. Barfley, supra, People v. hk, 456 

N.E. 2d 980 (111. App.-1983). 

Those courts which have upheld the use 

of roadblpcks as aconstitutionally justified 

tool of law enforcement contain the follow- 

ing elements: the discretion of the officers 

in the field is carefully circumscribed by 

clear objective regulations established by 

high level administrative officials, ap- 

proaching drivers are given adequate 

warning that there is a roadblock ahead, 

the likelihood of apprehension, fear or sur- 

prise is reduced by a display of legitimate 

police authority at the roadhlock, and 

vehicles are stopped on a systematic, non- 

random basis that shows drivers they are 

not being singledout for arbitrary reasons. 

See Lowe, dnpts. 

Utilizing the factors to be weighed in 

22 VOICE for the De$ense I November 1987 

determining the reasonableness of seizures 

less intrusive than a traditional arrest per 

Brown v. Texas, supra, to-wit: the gravity 

of public concerns served by the seizure, 

the degree to which the seizure advances 

the public interest and the severity of the 

interference with individual liberty, I find 

the Dallas yolice Department "Driving 

While Intoxieated/Drivers License Check- 

point Operations" guidelines consistent 

with guidelines having been upheld by a 

majority of the states and that the public 

interest in controlling drunk drivers out- 

weighs the right to privacy in the balancing 

test; it is, therefore, ordered that the Mo- 

tion to Suppress is denied. 

- --- 

P. HAROLD ENTZ, JR., JUDGE 

rn All B u ~ and u Division Camman&m 

SUBJECT Driving While IntoxicatedlDrivcrs 

License Chockpaint Operations 

Each year drunk drivers cause thousands 

of deaths and injuries and untold property 

damage. The Dallas Police Department 

considers Driving While Intoxicated to be 

a sexious offense and believes that all legal 

means available should be used to appre- 

hend DWI suspects or to discourage mem- 

bers of the public from driving a motor 

vehicle when under the influence of 

alcohol. 

One of the most effective means of com- 

batting the drunken driver problem is the 

use of driving whiie intoxicatedl drivers 

license checkpoints. This method's effec- 

tiveness comes in part from its high visi- 

bility which creates an awareness in the 

public that enforcement action is being 

taken. An officer working at a checkpoint 

location will make many more contacts 

with drivers than an officer on roving 

patrol. Through these contacts word is 

spread throughout the community that 

there is a good chance of being appre- 

hended for DWI or operators license 

violations. 

Today, substantially fewer occupational 

drivers licenses are being issued to persons 

whose drivers licenses are suspended for 

refusing tests when arrested for DWI and 

or to parsons mnvictedof DWI. In ad&- 

tion, there are large numbers of persons 

whose applications for drivers licenses 

have been denied for these reasons. The 

numbers of unlicensed drivers on our 

streets has increased. 

To a large degree, enforcement of 

drivers license law violations is an integral 

part of the DWI enforcement effort, 

because suspension and denial of drivers 

licenses are a fmal result of successful 

DWI prosecution. Without strict enforce- 

ment of this phase of the "punishment," 

a large degree of the deterrent effect would 

be lost. 

In order to make a positive impact on 

violations of DWIaud drivers license laws, 

the Department must continue intensified 

enforcement efforts and enhance them with 

public awareness (educational) programs 

and "High Visibility" enforcement tech- 

niques such as checkpoint operations. 

The checkpoints are established on 

routes in proximity to establishments 

which sell alcoholic beverages. This results 

in a high volume of arrests of DWI sus- 

pects before they have had an opportunity 

to drive very far, thus saving lives and 

property. This is an advantage over the 

method of patrolling for DWI suspects. 

The drunken driver may have an accident 

before he is seen by a patrolling element, 

or the intoxicated driver may escape detec- 

tion altogether. 

The use of driving while intoxicatedl 

drivers license checkpoints has proven to 

be a more efficient use of manpower and 

time as. opposed to patrolling in the en- 

forcement of driving while intoxicated and 

drivers license laws. From November, 

1984, until November, 1985, the DWI 

Squad expended 21,598 man hours on 

moving patrol DWI enforcement and ar- 

rested 2,627 persons for DWI. This equals 

one DWI arrest for each 8.22 man honrs 

expended. During the same time period, 

the DWI Squad conducted filly-two drivers 

license checkpoint operations, expending 

1900 man hours and arresting 704 persons 

for DWI. This equals one DWI arrest for 

each 2.70 man hours expended. These 

hours included set up, aperation, transport 

and booking time. 

In addition to efficiency, the driving 

while intoxicated/drivers license check- 

points give high visibility. Something 

which is not achieved as well with routine 

patrols. The publiccan actually see that ar-

ests are being made. Potential violators 

feel that they are more likely to he apprehended 

and are less inclined to commit 

violations. This heightened perception 

among people inclined to drink and drive 

will convince many of them that the risk 

of apprehension is too great to take a 

chance on driving impaired. 

It is the policy of the Department concerning 

driving while intoxicated checkpoints 

to insure that these checkpoint 

operations are conducted in such a manner 

that will cause as little inconvenience 

as possible in terms of duration of the 

roadblock and average detention time pf 

individual motorists. Safety of themotorists 

is taken into consideration in choosing 

the sites and only uniformed officers 

are used. 

Advance notice to the public concerning 

the dates and general locations of the 

checkpoints will he made by use of the 

news &ha hotline at the ~olhnunicationr 

Division. Simultane~~usly, this same inforlnation 

will be nvade available to all news 

media representatives in the police press 

room. 

DWI checkpoints will not be held by 

personnel of the Department without prior 

authorization from the Commander of the 

Investigation and Enforcement Unit, Traffic 

Division. 

Billy Prince 

Chief of Police 

SUBJECT: DRIVING WHILE INTOX- 

ICATED/DRIVERS LICENSE CHECK- 

POINT OPERATION 

FROM - TO A, ON,- 

1 9 . A DRIVING WHILE INTOXI- 

CATEDIDRIVERS LICENSE EN- 

FORCEMENT CHECKPOINT OPERA- 

TION WILL BE CONDUCTED AT THE 

BLOCK OF 

A PUBLIC STREET OR HIGHWAY IN 

DALLAS, DALLAS COUNTY, TEXAS. 

THE PRIMARY PURPOSE OF THIS 

OPERATION IS TO ALLEVIATE THE 

HIGH INCIDENCE OF PERSONS 

DRIVING WHILE INTOXICATED 

AND DRIVING WITHOUT A DRlVERS 

LICENSE AT THIS LOCATION. 

THE FOLLOWING PERSONNEL 

WILL PARTICIPATE IN THIS 

OPERATION: 

SGT 

Lt. M. A. Levi 

TRAFFIC DIVISION 

RESULTS OF OPERATION: 

TIME EXPENDED: - MOTORISTS 

CHECKED: 

TRAFFIC ENFORCEMENT: - 

DWI ARRESTS: 

OTHER ARRESTS: 

SIGNED: (FIELD OPERATION) SGT. 

SELECTION ON OPERATIONAL 

LOCATIONS: 

1. DWIJDRIVERS LlCENSE CHECK- 

POINTS WILL NOT BE CON- 

I)IJCTI.:D WI'I'HOUT A WRITTEN 

OKIIER FROM THE COMMANDER 

01' THli INVESI'IGATION AND 

2. THE FOLLOWING SITES, WHICH 

DO NOT TOTALLY EXCLUDE 

OTHER LOCATIONS, WILL BE 

USED FOR DWIIDRIVERS LI- 

CENSE CHECKPOINTS. THEY 

WERE SELECTED BASED UPON 

THE VOLUME OF DWI ARRESTS 

AND DRIVERS LICENSE VIOLA- 

TIONS IN THE PAST AND THE 

FACT THAT THESE AREAS LEND 

THEMSELVES TO THE SAFE ES- 

TABLISHMENT OF CHECK- 

POINTS. 

A. 200 BLOCK CORINTH 

STREET ROAD 

B. 6 8 0 0 ~ SKILLMAN ~ 0 ~ ~ 

AVENUE 

C. 5500 BLOCK SECOND 

F. 4300 BLOCK MATILDA 

STREET BRIDGE 

4300 BLOCK GREENVILLE 

AVENUE 

6600 BLOCK GREENVILLE 

AVENUE 

G. 4800 BLOCK COLUMBIA 

AVENUE 

H. 7900 BLOCK GARLAND 

ROAD 

I. 3800 BLOCK SAMUELL 

BOULEVARD 

J. 5800 BLOCK BELT LINE 

ROAD 

3. OTHER SITES MAY BE SELECTED 

IN THE FUTURE. THE INVESTI- 

GATION AND ENFORCEMENT 

SECTION III COMMANDER WILL 

SELECT, INSPECT, AND AP- 

PROVE ALL OPERATIONAL LO- 

CATIONS (THE SAFETY OF OF- 

FICERS AND MOTORISTS WILL 

BE THE FIRST PRIORITY). 

A. DISTANCE OF VISIBILITY 

FOR MOTORISTS TO BE 

STOPPED AND OFFICERS 

SHOULD BE ADEQUATE. 

B. THE NUMBER OP TRAFFIC 

LANES TO BE STOPPED 

SHOULD BE KEPT TO A MINI- 

MUM. (NORMALLY NO MORE 

THAN TWO TRAFFIC LANES. 

THE ADDITIONAL LANES 

CAN BE BLOCKED OFF WITH 

ROAD FLARES, BARRICADES, 

ETC.) 

C. A LOCATION WITH A MINI- 

MUM NUMBER OF CROSSING 

STREETS PRIOR TO THE 

CHECKPOINT SHOULD BE 

SELECTED TO DISCOURAGE 

MOTORISTS FROM TURNING 

TO AVOID THE CHECKPOINT. 

D. THE NUMBER OF OFFICERS 

PARTICIPATING IN THE OP- 

ERATION SHOULD BE A 

DOMINATE FACTOR IN SITE 

SELECTION. AN INADE- 

QUATE NUMBER OF PERSON- 

NEL WOULD RENDER THE 

OPERATION UNSAFE. 

AVENUE 

D. 10,100 and 10,300 BLOCK 4. ADVANCE NOTICE TO THE PUB- 

HARRY HINES BOULEVARD LIC CONCERNING THE DATES 

E. 1800 BLOCK STORY LANE AND GENERAL LOCATIONS OF 

2300 BLOCK WEST NORTH- THE CHECKPOINTS WILL BE 

WEST HIGHWAY MADE BY USE OF THE NEWS 


MEDIA HOTLINE AT THE COM- 

MUNICATIONS DIVISION. SIMUL- 

TANEOUSLY, THIS SAME INFOR- 

MATION WILL BE MADE AVAIL- 

ABLE TO ALL NEWS MEDIA REP- 

RESENTATIVES IN THE POLICE 

PRESS ROOM. 

ANNOUNCING A DWUDRIVERS 

LICENSE CHECKPOINT OPERATION: 

I. A SUPERVISOR WILL SUBMIT A 

DWUDRIVERS LICENSE CHECK- 

'POINT OPERATIONAL PLAN 

WHICH WILL INCLUDE: 

A. TIME, DATE AND LOCATION 

OF THE PROPOSED OPER- 

ATION 

- - - - . . 

B. NAMES OF PERSONNEL CON- 

DUCTING THE OPERATION. 

C. PURPOSE OF THE OPERA- 

TION, STATING THE PROB- 

LEM. 

D. GOAL 

2. AT THE CONCLUSION OF THE 

OPERATION THE SUPERVISOR 

WILL COMPLETE THE "OPERA- 

TIONAL PLAN" FORM BY LIST- 

ING THE FOLLOWING INFORMA- 

TION IN THE APPROPRIATE 

SPACES: 

A. TOTAL TIME EXPENDED AT 

THE OPERATIONAL SITE. 

B. APPROXIMATE NUMBER OF 

MOTORISTS CHECKED. 

C. NAMES OF OFFICERS WHO 

ACTUALLY PARTICIPATED. 

D. ENFORCEMENT TAKEN. 

THIS COMPLETED REPORT OF 

THE OPERATION WILL BE SUBMIT- 

TED TO THE COMMANDER OF THE 

INVESTIGATION AND ENFORCE- 

MENT SECTION IU. 

POSITIONING OF VEHICLES: 

A. TWO POLICE VEHICLES WILL 

BE PARKED WITH ACCESS TO 

THE ROADWAY TO BE USED TO 

PURSUE MOTORISTS WHO AT- 

TEMPT TO AVOID THE CHECK- 

POINT. (ONE PURSUIT VEHICLE 

PARKED IN EACH DIRECTION) 

B. A LOCATION OFF OF THE 

ROADWAY WILL BE DESIG- 

NATED FOR OTHER POLICE 

24 VOICE for the Defetrse I November 1987 

VEHICLES TO AVOID INTERFER- 

ENCE WITH THE OPERATION. 

C. A LOCATION (USUALLY A BAR- 

RICADED OUTER CURB TRAF- 

FIC LANE) WILL BE DESIG- 

NATED FOR VEHICLES WHOSE 

DRIVERS ARE TO BE ISSUED 

CITATIONS. THIS LOCATION 

MUST NOT INTEREERE WITH 

TRAFFIC FLOW. 

D. VEHICLES DESIGNATED FOR 

PRISONER SECURITY WILL BE 

PARKED TOGETHER OFF OF 

THE ROADWAY. (ALLOWING 

ONE OFFICER TO MAINTAIN 

PRISONER SECURITY .) 

E. A LOCATION FOR PRISONERS 

VEHICLES WHICH ARE TO BE 

IMPOUNDED WILL BE SE- 

I.liCTI!I) WHICH WlLL PREVENT 

WKECKERS FROM IN'I'I!KI'IiK- 

ING WI'I'H THli OPERATION OR 

TRAFFIC FLOW. 

INITIAI'IN(i AND OPERATING A IIWI 

IDRIVERS I.ICI!NSI< CHECKPOINT 

A. CHECKPOINT OPI!KA'l'lONS 

WILL NOT BE INITIALED WITH- 

OUT A SUPERVISOR PRESENT. 

B. THE SUPERVISOR WILL NOTIFY 

HIS POLICE DISPATCHER OF 

THE LOCATION OF THE OPERA- 

TION AND ELEMENTS PARTICI- 

PATING. IF THE LOCATION IS IN 

ANOTHER RADIO CHANNEL 

AREA, BOTH DISPATCHERS 

WILL BE NOTIFIED. 

c. SIGNS ANNOUNCING THE OPER- 

ATION WILL BE ERECTED ON 

BOTH SIDES OF THE STREET AP- 

PROXIMATELY 3W FEET FROM 

THE CHECKPOINT SITE. THE 

SIGNS WILL BE 24' BY 24" 

REFLECTIVE LE'M'ERING. ROAD 

FLARES WlLL BE USED FOR 

LIGHTING AND TO HELP IL- 

LUMINATE THE SIGNS. 

D. ROAD FLARES WILL BE PLACED 

MARKING LANES TO BE 

CHECKED AND LANES TO BE 

BARRICADED. 

E. OFFICERS WILL BEGIN THE OP- 

ERATION BY STANDING IN A 

SAFE POSITION AT THE CURBS 

AND SIGNALLING THE FIRST 

APPROACHING VEHICLES TO 

SI'OI', AND IiNTliK THli STREW 

'1'0 CONTINIJE TIIE OI'EKATION 

ONLY AFTER THE FIRST VE- 

HICLES HAVE STOPPED AND A 

SLIGHT "BACKUP" IS AT- 

TAINED. 

F. QUESTIONING IN THE TRAFFIC 

LANES WILL BE CONFINED TO 

APPROXIMATELY 15 SECONDS. 

QUESTIONS: 

1.MAY I SEE YOUR DRIVERS 

LICENSE? 

2.MAY I SEE PROOF OF LIABILI- 

TY INSURANCE? 

IF THE DRIVER'S ANSWER IS 

NO, THEN HE IS DIRECTED TO 

MOVE HIS VKHICLI! TO I'HK 

S11W OPTHE ROAD WIIERE HE 

WILL BE ISSUEI) A CPI'KI'ION. 

IF A DRIVER APPEARS TO BE 

INTOXICATED, THE DRIVER 

WILL BE REMOVED FROM 

THE VEHICLE AND ESCORTED 

OUT OF THE STREET. THE 

VEHICLE WILL BE DRIVEN 

OUT OF THE STREET BY AN 

OFFICER OR PUBLIC SERVICE 

OFFICER. THE OFFICER WILL 

ASK THE DRIVER THE 

FOLLOWING: 

1. HAVE YOU BEEN DRINK- 

ING AN ALCOHOLIC BEV- 

ERAGE? 

2. ARE YOU TAKING MEDICA- 

TION OR USING DRUGS? 

3. WILL YOU SUBMIT TO A 

FIELD SOBRIETY TEST? 

G. IF EXCESSIVE TRAFFIC BACKUP 

OCCIJRS (TKAI'I'IC BACKlil) IJP 

IN I;XCI:SS . ~. OF .- 300 .~~ FEKr OR .-~~ 

MO- . 

TORISTS ARE BEING DELAYED 

BY THE TRAFFIC BACKUP 

LONGER THAN 5 MINUTES), 

THE SUPERVISOR AT THE OPER- 

ATIONAL LOCATION WILL TEM- 

PORARILY SUSPEND THE 

OPERATION. OPERATIONS WILL 

BE RESUMED AFTER THE BACK- 

UP PROBLEM IS ALLEVIATED. 

H. VEHICLES WHICH ATTEMPT TO 

AVOID THE CHECKPOINT WILL 

BE PURSUED PROVIDED IT IS 

APPARENT THAT A REASON- 

ABLE PERSON IN THE DRIVER'S 

POSITION WOULD HAVE HAD 

NOTICE OF THE NATURE OF 

THE CHECKPOINT. IN DETER- 

MINING WHETHER SAID 

DRIVER HAD NOTICE OF THE 

CHECKPOINT THE OFFICER

SHOULD CONSIDER FACTORS 

SUCH AS BOTH THE DISTANCE 

AND THE VISIBILITY OF BOTH 

THE ACTUAL CHECKPOINT 

AND SIGNS. 

THE OFFICER WILL ASK FOR 

MOTORISTS DRIVERS LICENSE 

AND FOR HIS PROOF 01' LIABIL- 

1I'Y INSURANCli. THE OFFICER 

WILL DISCUSS THE TRAFFIC 

LN THE COUNTY ClUMlNAL COURT NO. 4 

DALLAS COUNTY, TEXAS 

THB SThTH OF TBXAS * 

VS. 

* NO. 00-11111-E 

* 

JOHN DOE 

UNAUTHORIZED DISSENTING 

OPINION 

In accordance with the trappings of our 

trade, under the circumstance of dissent, 

it is appropriate to heap praise upon the 

learned majority. This task is easily ac- 

complished, given the benefit of this 

writer's fondness and deep respect for the 

lovable and rosy cheeked jurist-the target 

of this dissent. 

Having built this platform of respect, the 

writer is now free to proceed to attempt 

to ax the majority opinion in this cause. 

This is a difficult chore for his posture is 

akin to that of Humpty Dumpty, "When 

I use a word. it means iust what I choose 

it to mean-neither more nor less." Yet, 

having recently resigned as Manager of the 

Universe (at which time the writer engaged 

in Lhc scttlcment of international, constito- 

tional. and vurious barroom disnutcs). thc 

write; feels well equipped to'fear~ekly 

proceed. 

It would almost appear from the opinion 

that counsel for the defense had failed to 

raise the simple objection: the arrest and 

detention was done without statutory 

authority under the laws of Texas, the stop 

being illegal, the Motion to Suppress must 

be granted. While one might speculate that 

such objection could be raised by merely 

walking into the courtroom, we need not 

dally long on the matter, for the majority 

in its opinion raised the issue! On page 2, 

VIOLATION AND DURING THE 

CONVERSATION, DETERMINE IF 

THE MOTORIST IS INTOXI- 

CATED. 

TERMINATING A DWIIDRIVERS 

LICENSE CHECKPOINT OPERA- 

TIENL 

A. SIGNS AND ROAD FLARES WILL 

BE REMOVED FROM THE ROAD- 

WAY. 

Unauthorized Dissenting Opinion 

by Emmett Colvin 

B. THE SUPERVISOR WILL ADVISE 

THE POLICE DISPATCHER(S) 

THAT THE OPERATION HAS 

ENDED. 

C. OFFICERS INVOLVED IN AR- 

RESTS WILL SEARCH THEIR 

PRISONER'S VEt2ICLE PRIOR TO 

IT BEING IMPOUNDED. 

D. OFFICERS MAKING ARRESTS 

WILL REPORT TO THE JAIL AND 

PROCESS THEIR PRISONERS. 

paragraph 2, we find, "Therefore, with- When the roseate cheeked court, in its 

out the benefit of a warrant of arrest nor opinion, referred to a friend of court brief 

any statutory authorization to justify the prepared by a young and handsome local 

stop, . . . ." Being obviously enamoured lawyer, it must be pointed out that the brief 

with the excitement of deciding much was not all that "friendly." Tiring at this 

broader questions, the majority does not point, the writer will not refer to the cita- 

pause to answer the obvious question posed tions therein and will rely primarily on the 

by the quoted remarks-he then does a laymans view of the law. 

judicial NO NO and proceeds to unneces- Unlike the esteemed jurist in the ma- 

sarily resolve some preconceived constitu- jority, the writer is quick to point out that 

tional question. The jargon found in the he can be bought off. 

cited cases is interesting although irrev- 

elant. The fundamental-matter that is ig- Emmett Colvin 

nored is this-neither the Supreme Court Judge Per Curiam 

of the United States, federal courts, or 

sister jurisdictions have the power to tell PUBLISH (Among clubs, pubs, learned 

officers in the State of Texas when to make and unlearned judges and lawyers, and all 

an arrest. Their force, if any, is a negative others without discrimination, and to those 

one. In short, there is no constitutional firm believers in the Cedar Hill common 

question to he resolved in the premises. law.) 

- - ~ 

-- ~~ -- ~- ~~- 

~p~ 

i i 

i Frank Maloney Installed as President of NACDL 1 

Frank Maloney, an Austin, Texas criminal trial lawyer was installed as the 29th ; 

President of the National Association of Criminal Defense Lawyers during the 1 

Association's annual convention in Snowmass, Colorado. An NACDL member since 1 

1970 and a board memhkr since 1972, Mr. Maloney has sewed on many of the Asso- 

ciation's committees, including the Lawyers' Assistance Strike Force. Continuing 

Legal Education, Amious Cutiae and Publications. He has prepared and presented 

testimony on NACDL's behalf before the U.S. Senate. Mr. Maloney is also a member I 

of the Travis County, Boston, Massachusetts and American Bar Associations as well 

as a member of the American Board of Trial Advocates, the State Bar of Texas, / 

the Texas TriaI Lawyers Association and the Texas Criminal Defense Lawyers I 

Association, of which he served as President in 1971-1972. 

From 1956-1960 Mr. Maloney'was an Assistant District Attorney in Travis 

County, Texas. From 1961-1962 he was an Assistant Attorney General, Chief Law 

Enforcement Division in Texas. Since 1962 he has been in private practice in Austin 

and has been an adjunct professor of law at theuniversity of Texas School of Law. 

FrankMaloney was born and raised in Worcester, Massachusetts. His undergrad- 

uate and law degrees are from the University of Texas. - - 

- 


The initial stages of an appeal are highly 

important for the criminal defense lawyer. 

Without a complete record, your client will 

not have a meaningful appeal. If, however, 

yon do have a complete record, you will 

know exactly what happened at trial-and 

this is especially important if you are look- 

ing for appellate issues when you did not 

try the case. On the other hand, if you do 

not file the proper requests, an important 

document or portion of the testimony 

might not be included in the record and you 

could he denied the right to supplement at 

a later time. In an extreme case, you could 

lose your client's right to a statement of 

facts entirely, thus raising the ugly spec- 

tre of ineffective assistance of counsel. 

This article discusses the mechanics for 

getting the record fie and dealing with oc- 

casional problems which may arise. n- 

lustmtive motions are included at the end. 

The Transcript on Appeal 

The transcript on appeal is a collection 

of the important documents and papers 

from the case. It will always include copies 

of the indictment or information; any 

special pleas or motions of the defendant 

which were presented to the court and 

overruled, any written waivers; the court's 

docket sheet; the charge to the jury and its 

verdict; the court's judgment; any motion 

for new trial and the ruling thereon; the 

John Nation has been Chief Staff At- 

torney for the Dallas Courf ofAppeals and 

an Assistat@ District Attorney assigned to 

the AppeNate Section in Dallas County, 

Texas. He is now in private practice in 

Dallas, Texas. 

26 VOZCEfor the Defense I November 1987 

Getting Started on an Appeal: 

Preparing the Record 

by John D. Nation 

notice of appeal; any bills of exception and 

any other papers designated by any party, 

Tex. R. App. Pro. 51(a). 

Although the rules of appellate pro- 

cedure require the clerk to include the 

above material in the transcript, you should 

neveaheless fde a designation of the record 

both to ensure that this material is included 

and provide that any other papers you 

deem relevant will be included with the 

record. A designation is a request for cer- 

tain listed papers, such as those mentioned 

above, to be included in the record. [See 

example and Rule 51@)]. Most appellate 

practitioners will use a specific and ex- 

haustive designation. This is necessary for 

two reasons: what you do not request 

might not make it into the transcript and 

you cannot complain on appeal if papers 

which you did not designate werenot in- 

cluded in the record. Rule 51(h). Further, 

a general designation, such as "all papers 

filed in the cause", will be disregarded. 

Id. A copy of the designation must be 

served upon the State. Id. 

Before filing your designation, you may 

wish to review the trial court's jacket and 

make notes of any material you think 

should be included in the record. If the case 

has been reindicted, check to see if there 

were any important papers fled under the 

previous indictment. Similarly, if you are 

appealing a probation revocation based on 

a previous guilty plea, make sure that the 

plea papers and judgment are included. Re- 

member that it is your responsibility to 

have an adequate record prepared show- 

ing error requiring reversal. Rule 50(d). 

Time to File the 

Designation and Transcript 

Your designation must be filed "at or 

before the time for perfecting the appeal." 

Rule 51(b). This means that the designa- 

tion is due within thirty days of imposition 

of sentence if no motion for new trial is 

filed or ninety days if a motion for new 

trial is timely filed. Rule 41@)(1). If you 

have filed your notice of appeal early, it 

would appear under Rule 51(h) that you 

can file the designation by the last day provided 

for filing notice of appeal. 

Once appeal is perfected, the clerk of the 

trial court must immediately prepare and 

transmit the transcript to the appropriate 

appellate court. Rule 51(c). The transcript 

must he made in duplicate, and one copy 

will he retained by the trial court for use 

by the parties with the permission of the 

trial court. Id. 

The transcript and statement of facts are 

due in the appellate court within sixty days 

of sentence, or within one hundred days 

if a motion for new trial is filed. Rule 

54(b). You may obtain an extension of 

time to file the transcript and statement of 

factsby filing a motion reasonably explaining 

the need for more time in the court of 

appeals not later than fifteen days after the 

last date for filin~ the record. Rule 54(c). 

See Sections 4 and 5, in*. 

There is no speciiic provision for obtaining 

an extension of time to file the designation 

of the record. Under Rule 54(c), however, 

as part of a motion for extension of 

time to file the transcript and statement of 

facts, you may explain any delay in filing 

the request for the statement of facts. See 

Sections 4 and 5, in*. It is submittedthat 

if you have late fded the designation of the 

record, you could explain any delay in a 

subsequent mation to extend time for ffi 

the record. Otherwise, you could petition 

the appellate court to allow late filing of 

the designation under Rule 2(b). (For good 

cause shown, a court of appeals may suspend 

the provisions and requirements of 

any rule of appellate procedure upon the 

application of any party).

COURT OF CRIMNAL A P P E A L S 

Alex Benjamin SKLAR. No. 041-86 -- On D's PDR: Possession of 

Controlled Substance Conviction Reversed -- Opinion by Judge 

Miller: Judges Onion and Davis Concur; Concurring Opinion by 

Judge Teague; Dissenting Opinion by Judge McCormick, joined by 

Judge White; 7/1/87 

Attorney: Charles A. Hood 

Ct/Aap Decision reported at 700 S.W.2d 640. 

ARREST -- WARRANTLESS -- FACTS INSUFFICIENT TO SHOW IMMINENT 

ESCAPE : 

Facts: Informer tells officers D was going to drive to H to 

buy methamphetamine and would return to E later that night. 

Informant also gave police approximate area of D's residence, 

Officers drive to E, locate D's house, tell E police of situation 

and set up surveillance. I hour later officers see D in 

described vehcile drlving into E. Officers signalled driver to 

stop, which she did 1 and a half blocks from D's house. D was 

then searched. Officers had been informed of alleged offense 

more than 2 hours before the arrest; magistrate was available. 

Held: Facts do not satisfactorily prove D was about to 

escape under Article 14.04 C.C.P. Among the factors TCA found 

signficant: * Informer said D would return to town of his 

residence, gave no indication D would escape * No indication D 

had been informed of the investigation * Officer's knew D's 

November 1987 / VOICE for the Defene SDR-1

name and where he lived. 

NOTE: TCA found Ct/App's rellance on Coyne [485//9181 

Improper. That case .involved warrantless search of car 

[upheld on theory of inherent mobility] and had nothing 

to do with Art. 14.04 or possibility of escape. 

* * * * I 

. 

Diane WILKERSON, No. 684-86 -- OnD'sPDR -- Possession 

Conviction Upheld -- Opinion by Judge Onion; Judges Clinton, 

Teague 8 Duncan Concur; 7/1/87 

Attorneyst Richard Alley 

George Tr imber 

EXTRANEOUS OFFENSES -- WHAT LIMITATIONS ARE THERE ON HOW MUCH 

EVIDENCE BECOMES ADMISSIBLE ON THE EXTRANEOUS OFFENSE THAT IS 

PART OF "RES GESTATE" OF CASE ON TRIAL? TCA says wi l l have to 

be determined on case by case basis. 

Facts: D indicted in 2 counts for possession of controlled 

substance X and Y. D entered plea of guilty before a jury to 1st 

count. D complained on appeal that t/c should not have admitted 

testimony- about value and use of controlled substances in 2nd 

count. Evidence at trial showed airport search -- drugs X and Y 

were both found at same time, in same bag. 

Held: No reversible error. Criteria used: * common 

knowledge that most controlled substances have some effect on 

people * lack of sufficient trial objection * all the other 

facts and circumstances of case. 

CAUTION: State's rjght to introduce evidence is not 

restricted by entry of plea of guilty OR by D's 

admission of facts sought to be proved. TCA stresses 

here that relevant facts admissible under a plea of not 

guilty are also admissible under guilty plea. 

Martin Daniel LUNDE, No. 1261-85 -- On D's PDR -- Possession 

Conviction Affirmed -- Opinion by Judge Davis; Judges Miller 8 

Duncan Concur; Judges Clinton. Teague B Campbell Dissent; 7/1/87 

Attorneys: Mike Charlton 

Charlie Baird 

Ct/App affirmed at 720 S.W.2d 251. 

SDR-2 VOICE for the Defense I November 1987

ARREST -- WARRANTLESS -- PROBABLE CAUSE FOUND BY COMBINATION 

OF OBSERVED BEHAVIOR AND POLICE PRIOR KNOWLEDGE/EXPERIENCE: 

Facts: Officers get tip from inforniant that he had seen 2 

men standing in front of grocery store. dealing herotn. 

Informant lived in area and gave physical description of each man 

and his clothing. Previous tips from same informant had proven 

good and resulted in convictions. Within a half hour, officers 

set up surveillance within 75 yds. of the 2 men. Both men 

matched .informant's description. Using binoculars, officers 

watched actions of 2 men. They saw a black man approach 1 of 2 

men, speak briefly, then walk to 1st man. They stood very close 

together, speaking, and with hands outstretched between them. 

ALTHOUGH NEITHER OFFICER COULD SEE WHAT, IF ANYTHING, WAS PASSED 

BETWEEN THE TWO MEN. BOTH OFFICERS WERE OF FIRM OPINION. BASED ON 

OVER 26 YEARS OF COMBINED SERVICE, THAT A DRUG TRANSACTION WAS 

TAKING PLACE. D arrested. 

Held: Observed behavior, although not overtly criminal. 

coupled with police prior knowledge may be sufficient to 

establish probable cause to justify warrantless arrest under Art. 

14.01 C.C.P. [offense committed in officer's presence]. 

Ignacio CUEVAS, No. 69, 178 -- Death Penalty Conviction 

Affirmed -- Opinion by Judge White; Judge Clinton Concurs; 7/1/87 

VOIR DIRE -- ENMUND. PER SE, IS NOT A BASIS FOR A CHALLENGE FOR 

CAUSE: TCA relied on recent Tison v, Arizona. 107 S.Ct. 1676 

(1987) which added a new test for death penalty eligibility in 

felony murder cases. TCA reasonsed that because it is not 

necessary that the jury make an Enmund finding, Enmund cannot bar 

the service of any venireman. 

PRACTICE GUIDE: D must show that venireman was biased 

or prejudicied against the principle of law that 

prescribes application of law of parties to the special 

issues -- MAKE SURE TO INFORM VENIREMEN WHAT THE LAW 

REQUIRES, then ask if they could follow it. 

Ex parte Stephen LYNN, No. 69,574 -- Post Conviction Relief 

Denied on State's Motion for Rehearing -- Opinion by Judge 

Miller; Judges Clinton, Teague 8 Duncan Dissent; 7/1/87 

Attorneys: J. Thomas Sullican 

J. Blake Withrow 

November I987 / VOICE fpr the Defeme SDR-3

PUNISHMENT EVIDENCE -- VOID PRIOR CONVICTION -- WAIVED BY 

FA1 LURE TO OBJECT AT TRIAL: At punishment phase, St introduced 

prior conv iction. Prior had fundamentally defective indictment. 

Held: Fai lure to object to evidence waives it. 

NOTE: This precise issub has never been addressed by 

TCA before. 

CAUTION: This is NOT a case where the prior conviction 

was used for enhancement -- i.e., used to statutorily 

ralse the range of punishment. TCA careful l y 

distinguished enhancement cases which have held that 

fundamentally defective indictments render prior VOID 

because t/c never obtained jurisdiction, and that no 

trial objection needed to preserve eeror. 

Ex parte RENIER, No. 69,728 -- Post Conviction Writ Relief 

Denied -- Opinion by Judge Clinton; Concurring Opinion by Judge 

Onion; Dissenting Opinion by Judge Teague; 7/1/87 

Attorney: Candy Elizondo 

HABEAS CORPUS -- "CONFINEMENT" IS A REQUIREMENT FOR POST 

CONVICTION WRITS TAKEN UNDER ART. 11.07 C.C.P.: D was convicted 

and given probation. He successfully llved out probation and 

under former art. 42-14, Sec. 7 was released from all penalities 

and disabilites. D thereafter filed post conviction attack based 

on collateral consequences i-e., hampered in career because 

unable to get bonded position. 

Held: Unless an applicant is confined pursuant to commit- 

ment from a feIony conviction, a post conviction application for 

habeas relief [based on collateral consequences] will not lie -- 

Art. 10.07 is reserved for applicant's in CONFINEMENT. 

CASES OVERRULED: Ex parte Ormsby, 676//,130. 

PRACTICE GUIDES: 

I. If client is suffering from collateral consequences 

of a prior felony conviction, he may seek habeas relief 

from the district court. Art. V. Sec. 8, TEX-CONST. 

Unlike an 11.07 procedure, t/c has authority to grant 

relief. If a favorable ruling is not obtained in t/c, 

D can go through appellate steps to Ct/App and TCA. 

SDR-4 VOICE for the Defense / November 1987

2. Would D confined without bail because of his prior 

convictions be in "confinement"? 

3. What impact will this have on enhancement attacks. 

Rather than go through the sometimes lengthy 11.07 

route to attack a prior alleged for enhancement, D may 

now get relief granted by convicting court of prior. 

[Akin to misdemeanor writ practice.] CAUTION: Always 

cover all bases by also filing a Motion to Quash the 

enhancement paragraphs in t/c where they are being used 

to increase statutory punishment range. Failure to 

object in court where enhancements are charged WAIVES 

all claims but those based on fundmentally defective 

indictments. 

David Lee POWELL, No. 67,639 -- Death Penalty Conviction 

Afflrmed -- Opinion by Judge McCormick; Judge Duncan Concurs; 

Dissenting Opinion by Judge Onion. joined by Judge Clinton; 

Concurring and Dissenting Opinion by Judge Teague; 7/8/87 

Attorney: Will Gray 

INSANITY -- WAIVER OF ESTELLE-V. SMITH WHEN D INTRODUCES 

TESTIMONY ON ISSUE OF INSANITY AT GUILT-INNOCENCE PHASE: 

BACKGROUND INFORMATION: Estelle v. Smith. 101 S.Ct. 

1866 holds: a psychiatrist appointed by t/c on the 

issue of competency cannot testify as to future 

dangerousness in death penalty prosecution UNLESS 

Miranda warnings were given prior to the in-custody 

examination. 

Held: When. D introduces testimony on the issue of insanity at 

the guilt-innocence phase, he wavies his 5th and 6th Amendment 

rights, Theory: In Texas capital murder cases, the information 

testified to by mental health experts goes to assist State in 

proving up one of the necessary elements to support imposition of 

the death penalty -- future dangerousness. However, once D has 

argued the affirmative defense of insanity by use of testimonv 

from a mental health expert, 5th Amendment privilege accompanying 

any psychiatric testimony has been waived. 

Wovernber 1987 1 VQICE for the Dsfene SDRS

VAUGHN & SONS, INC., No. 339-83 -- On State's PDR -- Criminally 

Negligent Homicide Court of Appeals Reversed -- Opinion by 

Presidilng Judge Onion; Judge Teague Dissenting; Concurring 

Opinfon by Judge Clinton; 9/16/87 

Attorney: Robert C. Bennett 

Ct/App Decision reported at 649 S.W.2d 677 (Tex.App.- 

Texarkana, 1983). 

CORPORATION LIABLE FOR CRIMINALLY NEGLIGENT HOMICIDE: 

Facts: Vaughn & Sons, Inc.., a Texas corporation was tried 

before a jury in Harris County for the offense of criminally 

negligent homicide. The information alleged that the 

corporation acting through two of its employees caused the 

deaths of two individuals in a vehicle collision. The Court of 

Appeals held that a corporation could not be held criminally 

responsible for the offense of criminally negligent homicide. 

The Court of Appeals reasoned that without a stronger, clearer 

indication from the Legislature that they intended to hold 

corporations responsible for homicide the Court would not do 

so. The Court of Appeals felt that it should move slowly in the 

direction of holding either an individual or a corporation 

criminally liable for a crime, especially one as serious as 

homicide when it was committed by someone other than the person 

charged. 

Held: The Court of Criminal Appeals recognized that at 

common law a corporation could not commit a crime. Today, 

however, the general rule in the United States is that a 

corporation may be held liable for criminal acts performed by 

its agents acting on its behalf. The Court examined the 

definition of "per~on'~ as found in V.T.C.A. Penal Code 51.07(a) 

(27) as well as the V.T.C.A. Penal Code 87.22 (criminal 

responsibility of a corporation or association) and concluded 

that a corporation could be criminally prosecuted for the 

misdemeanor Code offense of criminally negligent homicide under 

V.T.C.A. Penal Code 119.07. 

COMMENT: This is a significant decision that may 

radically expand criminal exposure of many corporations 

in Texas. Where the alleged criminal act involves an 

injury that occurs in the work place, as for an 

example, a trench collapsing and killing a workman, a 

Court in Illinois has held that state criminal 

prosecutions based on conditions in the work place are 

preempted by the Federal Occupational Safety and Health 

Act of 1970. Peo~le v. Chicacro Maqnet Wire CorD., 510 

N.E.2d 1173 (111.App. 1987). 

SDR-6 VOICE for the Defense / November 1987

Melvin Edward BUTLER, No. 1063-83 -- On Dvs PDR: Murder 

Affirmed -- Opinion by Judge McCormick; Concurring Opinion by 

Judge Clinton; 9/16/87 

Attorneys: Robert Udashen 

Gary A. Udashen 

BRADY MATERIAL -- FAILURE TO DISCLOSE: 

Facts: Following D's conviction, his attorney learned that 

the DA had received information before trial that police %ad 

discovered a knife in conliection with the case. he knife was 

supposedly found on the roof of a building.near the scene of the. 

crime but bore no discernable fingerprints. The DA had also 

been told by his medical expert that blood found on the knife 

matched the blood of the deceased. The victim and D had'been 

fighting in an apartment and then disappeared behind the 

building. The victim was later found bleeding to death from a 

stab wound in the chest. 

Held: There is no showing that disclosure of the knife 

itself would have created a reasonable doubt of Dvs guilt or 

bolster the defensive theory of self-defense. Non disclosure of 

the test results run on the knife was a closer question. The 

Court found that it was not clear that the information 

suppressed by the State was of a character favorable to the 

accused while the matching blood samples tended to show the 

knife was used in the commission of the offense there was no 

evidence except Appellant's own testimony to connect the knife 

with the crime. The Court found the negative fingerprint 

results not to be exculpatory. 

Wayne Mandlebert ROBINSON, No. 66,967 -- Agg. Kidnapping 

Affirmed -- Opinion by the Court; 9/16/87 

Attorney: Donald B. Kelley 

PRIOR CONVICTIONS: 

Facts: D attacked by Motion to Quash prior a conviction 

alleged for enhancement. D contended that the conviction was 

void because the stipulation and agreement to stipulate 

contained an erroneous cause number. 

Held: The Court held that the presumption of regularity of 

judgment prevailed unless D made an affirmative showing of a 

November 1987 1 VOICE for the Defense SDR-7

defect. The court found D did not discharge his burden by 

showing affirmatively that appropriate waivers and admonishments 

were not executed or given to him. The Court further found that 

at most, D raised a factual issue as to whether the discrepancy 

in cause numbers on the agreements to stipulate and waivers 

although filed in the papers of this conviction were not in fact 

contained in that conviction. This fact issue was resolved 

against him by the trial court. The Court also rejected D's 

contention that he had been improperly admonished on the range 

of punishment. The admonishment substantially complied with the 

requirements of Art. 26.13 V.A.C.C.P. and D had not shown the 

plea to be involuntary. 

Danny Lee BARBER, No. 68,905 -- Capital Murder Death Abated for 

a New Hearing on Competency -- Opinion by Presiding Judge Onion; 

Dissenting Opinion by Judge McCormick, joined by Judge White; 

9/16/87 

Attorney: Melvyn C. Bruder 

COMPETENCY TO STAND TRIAL. 

Facts: After the jury had been impaneled and jeopardy had 

attached, D's counsel brought to the attention of the trial 

court that a Dr. Lett had filed a report concluding that D was 

incompetent to stand trial. The Doctor testified that Defendant 

was a schizophrenia/paranoid type; that he was incompetent to 

stand trial and unable to communicate with his attorney. Dr. 

Griffin testified that he had examined D and that he was 

competent to stand trial. The Court found there was no evidence 

to support a finding of incompetency. See, Art. 46.02 84(a) 

V.A.C.C.P. No separate jury to determine competency was 

impaneled. 

Held: Relying on Sisco v. State, 599 S.W.2d 607 (Tex.Crim. 

App. 1980) and Williams v. State, 663 S.W.2d 832 (Tex.Crim.App. 

1984), the Court held that Dr. Lett's testimony constituted 

''some evidence'' of incompetence. The Court abated the appeal 

and remanded for a retrospective determination of competency. 

COMMENT: A number of other issues were presented in 

the appeal that represent settled law and will not be 

discussed. 

SDR-8 VOICE for the Defense I November 1987

Preparing the Record 

co~rlinuedfmm page 26 

The Statement of Facts 

The statement of facts is the written 

record of the testimony taken at trial. A 

basic premise of appellate practice is that 

the statement of facts must reflect any 

testimony, evidence or objections deemed 

relevant on appeal. If something is not in 

the statement of facts, it is just as if it did 

not happen. Normally the statement of 

facts will include written exhibits and 

photographs which were introduced at 

trial. 

In order to present a statement of facts 

on appeal, youmust make a written request 

to the ofticial court reporter designating the 

portions of the evidence and other proceedings 

to be included in the reeord. As with 

the designation of the record, this request 

should be specific, notifying the court 

reporter of specific portions of testimony 

desired, such as all pretrial hearings and 

the punishment hearing. This request is 

also due at or before the time for perfecting 

the appeal. Rule 53(a). A copy of this 

request must be served upon the State, 

which may crossdesignate within ten days 

after service of a wpy of your request. 

Rule 53(b). [See example]. 

If your client is indigent, yon must at this 

time (at or before the time for perfecting 

the appeal) fde a motion with the trial 

court, supported by affidavit, requesting 

the trial court to order a free statement of 

facts. Rule 53(i)(2). This role indicates that 

the trial court should conduct a hearing; 

in larger counties, sometimes no bearing 

is held, and the appellant is given a free 

statement of facts after executing a form 

aff~davit It is critical that you get this done 

on time-again, there is no specific provision 

for an extension of time to file the affidavit. 

But see Rule 2(b) and Section 2, 

supra. 

The parties may agree upon "a brief 

statement of the case and of the facts 

proven as will enable the appellate court 

to determine whether there is error in the 

judgment." Rule 50(c). In criminal cases 

this is rarely done. You may also request 

a partial statement of facts. If you do so, 

you must include in your request a statement 

showing the points of error you will 

rely upon. On appeal, you will be Limited 

to these points of error and the conrt will 

presume that nothing omitted from the rec- 

ord is relevant to any of the points ppecified 

or to the disposition of the appeal. The 

State may designate additional portions of 

the evidence to be included. Rule 53(d). 

In practice, this is rarely done and you 

should not attempt an appeal on a partial 

statement of facts unless you really know 

what you are doing. Narrative statements 

of facts are provided for hut are seldom 

used in criminal cases. Rule 53(i). 

The statement of facts is in sufficient 

form to be filed in the court of appeal? 

when it is certified by the official court 

reporter. Rule 53(fJ. The trial judge's ap- 

proval is not required. It is the appellant's 

(i.e., your) duty to cause the statement of 

facts to be filed with the appellate court. 

Rule 53(k). 

Time to File the 

Statement of Facts 

The statement of facts, as well as the 

transcript, medue within sixty days after 

sentence or one hundred days if a motion 

for new trial is fdd. Rule 543). As a prac- 

tical matter, you should keep in touch with 

the court reporter and have him or her give 

you advance warning that an extension will 

be necessary. 

You may obtain an extension of time to 

file the statement of facts by presenting a 

motion reasonably explaining the need for 

more time by the fifteenth day after the last 

date for filing the record. Rule 54(c). This 

motion must include the following infor- 

mation: 

(a) the court below and the date 

of judgment, together with the 

number and style of the case; 

(b) in criminal cases, the offense 

for which the appellant was con- 

victed and the punishment assessed; 

(c) when extension of time is 

sought for filing therecord, the filing 

dates of any original and amended 

motions for new trial, together with 

the date when they were overruled; 

(d) if the appeal has been 

perfected, the date when the appeal 

was perfected; 

(e) the deadline for filing of the 

item in question; 

(fJ the length of time requested 

for the extension; 

(g) the number of extensions of 

tie which have been granted 

previously regarding the item in 

question; 

(h) the facts relied upon to 

Rights 

A Litigation Handbook 

-James C. Harrington- 

Legal Director 

Texm Civil LibertiesUnion Foundation. Inc. 

The only book of its kind about 

the Texas Bill of Rights 

SELECTED CONTENTS 

lntroduetion 

The Texas Bill of Rights 

- - 

Standards for Interwetine the Texas Bill of 

Rights 

Equal Protection 

Due Process 

Free Speech and Assembly 

Privacy and Othct Rights 

Criminal Law and Pwcedure 

Litigating a Stat. Constitutional Claim 

Choice of Forum 

Conclusion 

Appendixes: Model Pleadings and 

Judgments Twss Bill of Rights 

Bibliography 

Table of Cases 

I ~ ~ C X F 

I 

Hardcow. 312 pp. 

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easonably explain the need for an a waiver of the right to a statement of facts. 

extension; and 

Rhoda v. Stale, 514 SWZd 937, 939 

(i) when an extension of time is (Tex.Crim.App. 1974); Shead v. Stale, 

requested for filing the statement of 697 SW2d 784, 786 (Tex.App.-Dallas 

facts, the facts relied upon to 1985) (holding that because Defendant did 

reasonably explain the need for an not timely designate record, he waived 

extension must be supported by the r~ght to file statement of facts on appeal, 

affidavit of the court reporter, or the and court lacked authority to grant motion 

certificate of the trial judge, which to extend time for filing designation), on 

shall include the court reporter's rehearing, 711 SWZd 345,347-348 (Tex. 

estimate of the earliest date whem the App.-Dallas 1986) (holding that such failstatement 

of facts will be available ure constituted ineffective assistance of 

for filing. 

counsel and remanding cause so that record 

Rule 73(a)-(i). This motion must also rea- could be prepared). 

sonably explain any delay in filing the re- With the adoption of the new rules, 

quest for the statement of facts. Rule 54(c). especially Rule 54(c), it now appears that 

Bear in mind that court reporters are as the failure to request the statement of facts 

overworked as you are. You may need to on time does not waive the right to have 

request one or more extensions of time to the statement of facts included on appeal. 

file the statement of facts. Along these Note also that the amendment to Rule 

lines, you should be aware of your court 53(a), effective January 1, 1988, elimiof 

appeals' policy on the number and nates the opening phrase, "in order to prelength 

of extensions for filing the record sent a statement of facts on appeal." In any 

so that you may press the court reporter event, should you fail to file your request 

when necessary. 

on time, file it late and be prepared to 

Problems with the 

Statement of Facts 

argue that this fact does not defeat your 

right to a statement of facts. 

If no statement of facts is filed, the clerk 

One of the major problems in this area will notify the appellant's attorney that in 

is the appellant's failure to file the request the absence of a statement of facts, that the 

for the statement of facts on time. If you appeal will be submitted on the transcript 

fail to file such a request, the court reporter alone. Rule 53(m). The appellate court 

may go ahead and prepare the record; then may order the trial court to hold a hearing 

again, he or she might not. You may be to determine whether this failure was due 

in serious trouble when it comes time to to ineffective assistance of counsel, or any 

file the record or an extension of time other reason; to make findings of fact and 

therefor. 

conclusions of law; to appoint counsel if 

If you are beyond the time for filing the necessary and transmit to the appellate 

request, go ahead and file it anyway. Rule court a record of the hearing. The appellate 

54(c) provides that you may reasonably ex- court may order the late filing of a stateplain 

the delay in filing the request in your ment of facts. Id. 

motion to extend tie for filing the record. If the appellant is indigent, the appellate 

This provision has been interpreted as court likely will order the trial court to hold 

allowing an appellant to file a statement of such a hearing. This may not be so certain 

facts when the request was not filed rather if the appellant is not. If you represent an 

than forcing the appellant to proceed with- appellant who is in this situation, you 

out a statement of facts. Corltainer Part 

Services v. Gage, 719 SW2d 663,664-665 

should petition the court of appeals to remand 

the cause to the trial court for a hear- 

(Tex.App.-El Paso 1986, no writ). A rea- ing. Should the evidence reveal that the 

sonable explanation includes any plausible failure to file the statement of facts was due 

set of circu~nstances indicating that failure to counsel's failure to designate, the apto 

file on time was not deliberate or inten- pellant will probably still receive a record 

tional, but the result of inadvertance, mis- -but only on a finding of ineffective 

take or mischance. Mes11,vert v. mesh we^?, assistance of that counsel. 

549 SW2d 383, 384 (Tex. 1977). To summarize, if you don't get the re- 

Prior to the adoption of the Texas Rules quest for the slatement of facts filed on 

of Appellate Procedure, it was held that the I time, go ahead and file it late. This will 

failure to designate the record constituted prevent you from having to fall on your 


sword at a later time. 

If you have made a timely request for 

the statement facts, but the court reporter's 

notes and records have been lost or de- 

stroyed without appellant's fault, the ap- 

pellant is entitled to a new trial unless the 

parties agree on a statement of facts. This 

points up the need for a specific and ex- 

haustive designation of the testimony: if 

you have requested all items such as sup- 

pression hearings, etc., you may win a new 

trial for your client if the notes for one of 

those hearings has been lost. 

Supplementing the Record 

Occasionally, despite your best efforts, 

supplementation of the record will be necessary. 

The clerk might accidentally omit 

one of your requested documents or the 

importance of a missing paper might not 

become apparent until the briefing stage. 

Fortunately, supplementing the record has 

become subst ntially easier under the new 

rules of appe 7 late procedure. 

Before submission of the case in the 

court af appeals, omitted matter may be 

supplemented as follows: 

(a) by stipulation of the parties 

(apparently directed either to the trial 

court or the court of appeals); 

(b) by order of the trial court, 

after notice and hearing, either 

before or after the record has been 

transmitted to the appellate court; 

(c) by the appellate court, on a 

proper suggestion on its own 

initiative. 

Rule 550). Under any of these methods, 

the clerk of the trial court or the official 

court reporter must transmit a certified 

supplem~ntal record supplying the omitted 

matter. Id. The appellate court shall permit 

it to be filed unless supplementation 

would unreasonably delay submission of 

the appeal. Id. 

Inaccuracies in the statement of facts 

may be corrected by stipulation. If the 

parties disagree as to whether correction 

is necessary, the appellate court will snbmit 

the matter to the trial court, which, 

after notice and hearing, will settle the 

dispute. Rule 55(a). [As a practical matter, 

it is not worth attempting to correct 

the statement of facts over minor inaccuracies; 

it is worth doing only if the court 

reporter has mistranscribed a critical portion 

of the testimony or a crucial 

objection].

. . I. I. 

After submission, if it appears that the 

record has not been properly prepared, the 

court of appeals may decline to receive 

submission. Rule 55(c). The court may 

also make such orders as are necessary "to 

secure a morc satistidctory suhniission of 

the case." , . ~resulnablv includinc " orderinc - 

supplementation on its own motion. Id. If 

the statement of facts was prepared in 

violation of the rules, the court may require 

thc appcllunt to furnish n propcr statumcnt, 

and upon his failure to do so may disreg:~rd 

it. Id. 

Vety rarely will supplementation be necessary 

after the case is submitted. Given 

the liberality of Rule 55(a) and (b), you 

should be able to take care of any supplementation 

problems before submission. 

Conclusion 

2. All pleadings tiled by the Defendant and 

by the State of Texas and any and all rulings 

of the trial court thereon: 

3. All docket entries made by the trial court: 

4. All communications between the trial 

court and the jury: 

5. All written waivers signed by the Defen- 

dant or his attorney; 

6. All communications between the trial 

-court and counsel for all parties; 

7. The Court's charge submitted by the trial 

court to the jury during the hearings on guilt1 

inr~ocence and punshment; 

8. All objections to the Court's charge and 

all requested inshuct~ons tiled by the Defendant 

during the hearings on guiltlinnacence and 

punishment; 

9. The respective verdicts bf the jury during 

the hearings on guilt/innocence and 

punishment; 

10. TRe judgment and sentence of the trial 

court; 

11. The Defendant's notice of appeal; 

More exhaustive treatment of "lne of 12. All writtenmotions, pleasandordersof 

these issues may be found in the Texas the court; 

Criminal Appellate Manual (State Bar of 13. AU BU of~x"Ption, rulings ofthe trial 

Texas 1986). If yon intend todomore than court on any and all Bills of Exception, and 

one appeal per year, you should become transcripts of all proceedings held pursuant to 

familk with the rul& of appellate pro- said ifi is of Exception; - 

cedure; those attorneys who demonstrate 14. The Defendant's Motion For New Trial 

knowledge of appellate procedure tend to and Amended Motion New Trkl; 

haveless trouble with the appellate courts 

15. The order of the trial court on Defendant's 

Motion For New Trial; 

when problems arise than those who do 

16. The list of prospective jurors in which 

not. It is also worth consulting your local the Jury of this cause was selected; 

appellate court clerk about local rules and 17, ~h~ ~~~~d J~~ testimony of all w,tpolicies 

which may affect preparation of 

the record. 

NO. F81-12%3 H 

NO. BS7-b785Ml 

STATE OP TEXAS. IN THE CRIMINAL 

Aslln. 

VS OISTRTCT COURT OF 

108 0. PUBLIC. 

4~11a0t. 

DESIGNATION OF 

RECORD ON APPEAL 

TO THE HONORABLE JUDGE OF 

SAID COURT: 

COMES NOW Joe Q. Public, theDefendant 

in the above styled and numbered cause, prior 

to the time prescribed for prefecting the appeal, 

and fdes this Designationof Record on Appeal, 

pursuant to TEX. APP. PROC. R. 50 & 51, 

and requests that the Clerk of this Honorable 

Court make and prepare as a part of the record 

in the appeal in this cause, true copies of the 

following matters: 

1. A copy ofthe indictment or information; 

nesses testifying for the State; 

18. The written repons and statements of any 

witnesses testifying for the State; 

19. All jury notes sent by thejury to thetrial 

coun during the hearings on guill!innocence and 

punishment, the response by the Court to said 

jury notes, the objections and requests made by 

the Defendant with respect to said notes and 

responses by the Court and the orders of the 

Court on each such objection and request; 

20. The jury list showing the str~kes ofjurors 

by the State of Texas; 

21. The jury list showing the strikes ofjurors 

by the defense; 

22. All exhibits introduced into evidence; 

23. All exhibits marked but not introduced 

into evidence. 

24. In the event that this cause is a reindictment 

from an earlier case, the Appellant asks 

that all of the aforementioned items from the 

earlier case he included in the transcript of this 

case as part of the Appellate record as well. 

25. In the event that this is a cause where 

the Defendant was placed on probation, and 

thereafter, his probation was revoked, the Appellant 

asks that all papers relating to both the 

initial plea proceedings and the probation 

revocation proceedings be included as well. 

Your Movant further urges the Court that all 

the above be assembled under one cover to 

thereby constitute the transcript on appeal; that 

the pages of said record he numbered con- 

secutively; that there be an index prepared by 

the Clerk showing each document incident in 

the record; and that, further, this record 

SENTENCING ALTERNATIVE 

PLANNING 

Our Defense Pre-Sentence Investigations and Reports: 

Carry favorable weight in the sentencing decisions of 

85% of the judges who read them. 

Minimize potential post-conviction problems 

0 Incorporate anticipated changes in federal and state 

sentencing practicing 

0 Include a sentencing recommendation and, when ap- 

propriate, alternatives to incarceration 

Sentencing and Parole Consultants 

National Legal Services 

71 0 Lake View Avenue, Atlanta, GA 30308 

Call now: 1-800-241 -0095 

November 1987 1 VOICE far the Defense 29

designation be included as a part ofthe record 

for all of which Defendant prays. Defendant 

would further request that he be provided a copy 

of said transcript of said trial along with copies 

of all pleadings and documents filed in this 

cause and that such will he paid for by thestate 

as the Appellant is ind.int. Further, pursuant 

to the requirements of TEX. APP. PROC. R. 

51 (c), Appellant prays that after the said transcript 

is prepared, it be forwarded to the Court 

of App~;rls for the Fifth Supreme Judicial District 

of Texas. 

WHEREFORE, PREMISES CONSID- 

ERED, the Defendant resuectfolly mays that 

the Clerk of this ~onorabie ~ouk make and 

prepare as a part of the record of appeal of this 

causecopies of all the matters stipulated above 

andmade same a part of the record in the appeal 

of this canse and that after preparation, the 

transcript be transmitted to the Clerk of the 

Court of Appeals fur the Fifth Supreme Judicial 

District of Texas at Dallas. 

Respectfully submitted, 

ROBERT M. CLARK 

TEXAS BAR NO. 04298200 

4627 N. CENTRAL EXPRESSWAY 

DALLAS, TEXAS 75204 

214 528-2400 

ATTORNEY FOR APPELLANT 

CERTIFICATE OF SERVICE 

This is to certify that a true andcorrect copy 

of the foregoing DESIGNATION OF REC- 

ORD ON APPEAL was delivered to the Hon. 

Kathi Drew, Assistant District Attorney, Dallas 

County District Anomy's Office, Dallas Coun- 

ty Courthouse, 600 Commerce, Dallas, Texas, 

75202, on this day of August, 1987. 


STATe OP TEXAS. 

Appellrellre 

VS 

JDE Q PUBLIC. 

Appetlm 

NO. F81-12%-H 

W PBF678%H 

Ed THE CRIMINAL 

DISTRICT COURT OP 

DALLASCOUNTY. TeXAS 

DESIGNATION OF 

STATEMENT OF FACTS 

30 VOICE for rhe Defense I November 1987 

TO THE HONORABLE JUDGE OF 

SAID COURT: 

COMES NOW Joe Q. Public, the Defendant 

in the ahove styled and numbered canse, prior 

to the time prescribed for prefecting theappeal, 

and files this Designatinn of Statement of Facts 

on Appeal, pursuant toTEX. APP. PROC. R. 

53 (a), and requests that the Official Court 

Reponer of this Honorable Court make and 

prepare as a part of the record in the appeal in 

this cause, true copies of the following matters: 

1. The testimony of any and an witnesses 

during the hearmgs on guiltlinnocence and 

punishment or upon any probation revocation 

proceedings; 

2. The testimony had at all hearings held outside 

the presence of the jury; 

3. All jury arguments of counsel for the State 

and the counsel for the Defendant during - the 

hearings on guiltlinnocence and punishment; 

- - 

4. The vair dire examination of all 1)ros~ec- 

live jurors; 

5. The mMionsand transcriDls of all~retrial 

hearings and the Court's &lings on said 

motions; 

6. The transcripts of 811 proceedingspursuant 

to said Defendant's Motion For New Trial and 

Amended Mot~on For New Trial; 

7. A transcription of any and all other hearing(~) 

had in connection with this cause including 

any probation revocation proceedings; 

8. Copies of any and all evidence in the 

possession of the court reporter. 

9. In the event that the instant cause is an 

reindictment or retrial of another case, the Appellant 

requests that the aforementioned items 

from the prior case be included herein as well. 

10. In the event that this is a cause where 

the Defendant was placed on probation, and 

thereafter, his probation was revoked, the Appellant 

asks that all papers relating to both the 

initial plea prodings and the probation 

revocation proceedings he included as well. 

Your Mwant hrther urges the Court that all 

the ahove be assembbd under one cover to 

thereby eonstitate the transcript on appeal; that 

the pages of said record be numbered consecutively; 

that there be an index prepared by 

the court reporter showing eachdocument included 

in the statement of facts; and that, 

further, this record designation be included as 

a part of the record for all of whichDefendant 

prays. Defendant would further request that he 

be provided a copy of said statement of facts 

of said trial and that such will be paid fur by 

thestate as the Appellant is indigent. Further, 

pursuant to the requirements of TEX. APP. 

PROC. R. 53 (k), Appellant prays that after the 

said statement of facts is prepared, it be forwarded 

to the Coun of Appeals for the FiRh 

Supreme Judicial District of Texas. 

WHEREFORE, PREMISES CON- 

SIDERED, the Defendant respectf~Uy prays 

that the Clerk ofthisHonorable Coun make and 

prcpare as a part of the record of appeal of this 

cause copies of all the matters stipulated above 

and made same a part of the record in the ap- 

peal of this cause and lhat after preparation, the 

transcript be transmitted to the Clerk of the 

Court of Appeals for the FiRh Supreme Judicial 

District of Texas at Dallas. 

Respectfully submitted, 


TEXAS BAR NO. 04298200 

4627 N. CENTRAL EXPRESSWAY 

DALLAS. TEXAS 75204 

ATTORNEYFORAPPELLANT 

CERTIPICATE OF SERVICE 

This is tocertify that a tcueand correct copy 

of the foregoing DESIGNATION OF STATE- 

MENT OF FACTS was delivered to the Hon. 

Kathi Drew, Assistant District Attorney, Dallas 

County District Attorney's Office, Dallas 

County Courthouse, 600 Commerce, Dallas, 

Texas, 75202, on this d 

1987. 

a y of August, 

ROBERT M. CLARK

The Sex Offense Laws 

The Texas Penal code lists eight types of 

sexual offenses which could involve chid- 

&en. They areas follows: (1) Homosexual 

conduct 121.06); (2) Public Lewdness 

(21.07); (3) Indecent Exposure (21.08); (4) 

Indecency Hrith a child (21.11); (5) Sex- 

ual Assault (22.011); (6) Aggravated Sex- 

ual Assault (22.021); (7) Incest (25.02); 

and (8) Solicitation of a child (25.06). For 

the purposes of this articleonly three types 

of sex offenses invoking children will be 

discussed: (1) Indecency with a child; (2) 

Sexual Assault (of a child) and (3) 4g- 

gravated Sexual Assault (of a child).33 

Indecency with a Chifd 

A person commits indecency with a 

&iId if, with a child younger than seven- 

teen years and not his spouse, whether the 

chid is of the same or opposite sex, he: 

Effective Prosecution of 

Sex Offenses Against Children 

by George E. West 11 

Part I1 

(1) engages in sexual contact with the 

child; or (2) exposes his anus or any part 

of his genitals, knowing the child is pres- 

ent, with intent to arouse or gratify the sex- 

ual desire of any person." "Sexual eon- 

tact' means any touching of the anus, 

breast, or any part of the genitals of 

another person with intent to amuse or 

gratify the sexual desire of any per~m.~' 

It is a defense to prosecution under this 

seGtion that thechild was at the time of the 

alleged offense fourteen years or older and 

had, prior to the time of the alleged of- 

fense, engaged pramiscnously in: (1) sex- 

uaI intercourse; (2) deviate sexual inter- 

course; (3) sexual contact: or (4) indecent 

exposure.98 

It is an affirmative defense to prosecu- 

tion that the actor was not more than two 

years older than the victim and of the op- 

posite ~ex.~9 

Indecency with a child is a felony of the 

Gmze E. West Ilis presently employed 

by the Dallas County District Attorney's 

mce as a ChiefFelony Pmsec~itor for rhe 

292nd Judicial Dishict During thew six 

and a half years he has serucd as Chief 

Felony Prosecutor of Criminal Districi 

Court #I, ChiefMfsdemeanor Prosecutor 

of County Criminal Court #3, and Chief 

Misdemeanor Prosecutor of County Criminal 

Court of Appeals #2. He also law 

clerkedfor the Attorney Generah Ofice 

and the State Comptroller's Once. 

He received his T.D. degree from the 

University of Texas in I980 attd his B. A. 

from SMU, whee he graduated with "Depamnt 

Distinction" in the field of 

Polirical Science. 

ntrotghout his professional career the 

secand degree if the prohibited conduct in- 

volves sexual contact with a child. The of- 

fense is a felony of the third degree if the 

offender engages iu any other prescfIbe-d 

cmduct.4~ 

Sexual Assault of a Child 

A person commits sexual assault of a 

child if the person intentiowlly or knowingly 

cam the penetiation of the anus or 

female sexual organ of a child by any 

means; muses the penetration of the mouth 

of achild by the sexual organ of the actor; 

or causes the sexual organ of a child to 

contact or penetrate the mouth, anus, or 

sexual organ of another person, including 

the actor." A child is a person younger 

than seventeen years of age who is not the 

spouse of the actor.42 

It is a defense to the sexual assault of a 

child that the child was at the time of the 

offense 14 yeats of age or older and had 

author has lechtred on nUn(er0u.s ocmrions 

andkas received cent~cates ofrecognition 

from orguniustions such as the Dallas 

Independent School District, fhe Greater 

D~lh Community Relations Commirtee, 

and the J. L. TurnerLegulSociety. He has 

been successful in over 90% of his jury 

trials artdhe has been nominated as "One 

glhe Most Outsfarding Young Men of 

America''. 

lhe author's love for children and hls 

recognition of the incremikg sex offenses 

against children hasprompfedhim to cond~ct 

extmive research in this area. Some 

of his rarearch and findings are reflected 

in his article "Efective Prosecution of Se* 

O&ses Against Children. " 

November 1987 1 VOICE for the Defnse 31

prior to the time of the offense engaged 

promiscuously in the proscribed conduct 

or the conduct consisted of medical care 

for the child. It is an affmative defense 

if the actor was not more than hvo years 

older than the victim. 

Sexual assault of a child is a second 

degree felony. 

Aggravated Sexual Assault of a ChiMa3 

A person commits the offense of ag- 

gravated sexual assault of a child if the per- 

I son commits sexual assault and the person 

causes serious bodily injury or attempts to 

cause the death of the victim or another 

person in the course of the same criminal 

episode; by acts or words the person places 

the victim in fear that death, serious bodily 

injury, or kidnapping will be imminently 

inflicted on any person; by acts or words 

occurring in the presence of the victim the 

person threatens to cause the death, serious 

bodily injury, or kidnapping of any per- 

son; the person uses or exhibits a deadly 

wzapon in the course of the same criminal 

episode; or the victim is younger than four- 

teen years of age. 

It is a defense to aggravated sexual 

assault of a child if the conduct consisted 

of medical care for the chid. A conviction 

for this offense is a first degree felony. 

Manner of Proving the Offense 

The manner of proving indecency with 

a child, sexual assault of a child, and ag- 

gravated sexual assault of a child, may 

consist of physical evidence andlor testi- 

monial evidence. The physical evidence 

may be clothes, pictures, videotapes, re- 

ports, or experiments. The testimonial 

evidence may come from the child witness, 

a complaint witness, or from an expert. 

Our focus will be on the use of testimonial 

evidence. 

Child Witness 

Competency 

One of the first major hurdles for the 

state to cross in prosecuting sex offenses 

involving children is qualifying the child 

under the Texas Criminal Rules of Evidence 

and the common law rules of evidence. 

The Texas Criminal Rules of Evidence 

state that every person is competent 

to be a witness except where otherwise 

pr~vided.~' Before testifying, a witness 


must declare that he will testify truthfully, fense,61 the fact that he or she pointed out 

by oath or affirmation administered in a to the police the place where the crime was 

form calculated to awaken his conscious committed,6z and any other matter required 

and impress his mind with the duty to do by law. 

so.45 If the witness takes such an oath or The uncorroborated testimony of a child 

affirmation, then he can testify as to rele- can support a conviction for indecency, sex 

vant matters within his personal knowl- abuse, and aggravated sex abuse if the 

edge.46 

chid victim informed any person, other 

A child, howevef, receives special treat- than the defendant, of the alleged offense 

ment under the Criminal Rules of Evi- within six months after the date on which 

dence. A child is not required to take an the offense is alleged to have occurred.63 

oath or aff~rmation although he or she may The requirement that the victim inform 

do so. To qualify as competent to testify another person of an alleged offense does 

under the rules the child is only required not apply if the victim was younger than 

to possess sufficient intelligence to relate 14 years of age at the time of the alleged 

transactions with respect to which he is in- offen~e.~'The time limit whichlapsed beterrogated." 

tween the alleged offense and the time it 

Guidance for sufficient intellect may be was reported does not affect the admissifound 

in the common law rules of compe- bility of the victim's testimony but only 

tency. The common law roles of compe- goes to the weight to be given to the testitency 

require the child to have: (1) the mony of the victim.65 

capacity to observe the events at the time The corroboration required to support a 

they occurred; (2) the capacity to recollect belated outcry can come from a witness 

the events so ohsenred; and (3) the capacity who saw the offense,66 from a witness who 

to narrate the events ob~erved.'~ The observed the condition of the victim,67 or 

capacity to narrate involves on the one from a physician who examined the vichand, 

both the ability to understand the tim.68 The corroborative evidence supportquestions 

asked and to frame comprehen- ing the testimony of a child victim need not 

sible answers and, on the other hand, a tend to directly comect thedefenda~t with 

moral responsibility to tell the truth.50 The the offense charged; it is sufficient if the 

law does not require the child to possess child victim was corroborated as to maor 

comprehend a vocabulary such as would terial facts and circumstances that tend to 

be expected of an adult, but instead allows support the testimony.69 Thus a witness 

the child to use simple words to convey his may corroborate the victims testimony by 

ideass1 

stating that the victim was frightened and 

In determining the competency of a child that fingerprints could be seen around her 

witness, the trial court may question a chid throat,70 or that her clothes were torn, or 

as to his age, grade in school, understand- that "white stuff lie the passage from a 

ing of difference between truth and decep- man" was on the victim's pantie^.^' 

tion, and understanding of duty to tell the The problem of corroboration can be 

The ruling of a trial court on the avoided if the child makes an outcry or 

issue of competency willnot be disturbed complaint of the offense to a person other 

absent a showing of abuse of di~cretion.'~ than the defendant within a six month period 

from the date of the alleged offense.7z 

Nature of Testimony 

The corroborative testimony will normally 

A child witness who has been found to 

come from a complaint witness. 

be competent by the trial court may testify 

as to any relevant evidence within his personal 

kn~wledge.~' In general, the witness 

Complaint Witness 

In rape offenses traditionally, and in sex 

may testify as to facts leading up to the of- offenses generally, evidence has been adfen~e,~' 

facts about the offense,16 and facts missible in the state's case in chief that the 

shortly after the offense." More specifi- victim made a complaint to another about 

cally, the witness may testify as to his or the alleged offense. The person to whom 

her age,5s marital status, lack of consent,59 the complaint had been made was called 

and sexual contact with the accused.60 The the complaint witness.73 The complaint 

witness may also testify to the number of was admissible into evidence as an exceptimes 

assaulted in connection with the of- tion to the hearsay rule on the theory that

it was noibeing offered to prove the truth consideration of self interest couldnot have consulted with others prior to making the 

of the matter asserted but only to repeal been fully brought to bear, the utterance statement. The weight to be applied to 

the inference either of consent or falsity of may be taken as expressing the facts just these factors will depend upon facts giving 

the claimed interc~urse.~' For this purpose observed by him. Three factors are neces- rise to them. 

the evidence was limited to the bare facts sary to bring the excited utterance state- The statement made by the declarant 

of the making of the ~omplaint.~~ If the ment within the exception to the hearsay must be one relating to the startling 

details of the complaint or identity of the rule: (a) an occurrencesufficiently startling event.87 If it relates to the startling event, 

defendant is being offered into evidence, to produce a spontaneous and unreflective it may be admissible althoukh admittedly 

its admissibility would have to be based ~tatement;~~ @) absence of time to fab- incorrect.88 On the other hand if the decupon 

the theory of res gestae. Two policies ricate; and (c) the statement must relate to laration relates to soma entirely discrimiunderlie 

the use of a res gestae statement. the circumstances of the occurrence. natedprevious happening not causative of 

One policy is the desire to permit a witness The type of event qualifying as a star- the exciting event, it is inadmis~ible.~~ The 

to tell his story in u natural way by telling tling event has to be determined on a case declaration must illuminate or explain the 

what happened at the time of the incident, by case basis. Theevent must beone which exciting event or relate to a happening 

including those facts so interwovenan ex- produces sufficient excitement to render causative of or descriptive of the eveWgO 

planatory of the event that is should be con- the declarant's mind incapable of creating Such declaration may be received though 

sidered part of the incident. The other falsehood. In the broadest sense, if the it is purely narrative of a past evenLgl 

policy is the recognition of spontaneity as event itself is one which would startle the The excited utterance rule is a very usea 

source of special trustworthiness, thereby average person then it will qualify as a ful tool in the prosecution of sex offenses 

allowing the admissibility of otherwise in- startling event. In a more limited sense, if involving children. The utterance can be 

admissible hearsay. Thus res gestae has the event, though not startling to the used to support the credibility of a testifybeen 

used to offer the details of the vic- average person, was startling to the de- ing chid, especially if the child made the 

tims complaint as the truth bf the matter clarant by reason of some individual asso- starement to more than onepers~n.~~ It can 

asserted. 

ciation, then that event may serve as a be used as original evidence if the child is 

The use of the term res gestae has been startling event. The proof of the startling found incompetent to testify.93 It can also 

stretched to cover many evidentiary rules event may come from a witness who saw be used to add details of the offense where 

without drawing distinctions between the the event or from the statement made by the child freezes up in the middle of the 

evidentiary policies underlying them. Both the declarant. 

testimony. Objections such as bolstering 

courts and commentaries have refrained The duration of the emotional state of the or self-serving cannot defeat the admissifrom 

using the term and instead focus on declarant cannot be announced in ad- bility of a qualified excited ntteran~e.~' If 

more descriptive exceptions to the hearsay vance.80 The character of the transaction the outcry statement does not come within 

rule. Today the sex victims camplaint may or event will largely determine the signifi- the excited utterance rule then it still may 

be introduced into evidence based upon cance of the time lapsed.8' Thus, where the be admitted into evidence if it qualifies as 

four hearsay exceptions: (I) excited utter- child remained in the presence of the man a present sense impression. 

ances, (2) present sense impression, (3) who ravished her until shortly before she 

Present Sense Impression 

bare fact complaint, and (4) hearsay state- made the statement, the time that lapsed 

inents of a child abuse victim. These four does not affect the admissibility of the A present sense impression is a stateexceptions 

are worthy of note, 

statement." A delay in reporting the of- ment describing or explaining an event or 

fense because of physical injuries resulting condition made while the decIarant was 

Excited Utterances 

from the offense will also not prevent the perceiving the event or condition, or im- 

An excited utterance is a statement re- statement from being admitted into evi- mediately thereafter.Y5 

lating to a startling event or condition made den~e.~' Consequently the mere lapse of The theory behind the present sense imwhile 

the declarant was under the stress of time between the occurrence in question pressionis that substantial mtemporaneity 

excitement caused by the event or condi- and the making of the complaint goes to of the event and statement negate the 

ti0n.7~ The admissibility of such exclama- the weight, and not so much the admissi- likelihood of deliberate or conscious 

tion is based upon our experience that bility, of the testim~ny.~' It is the emo- mi~representation.9~ Moreover if the 

under certain external circumstances of tional status of the declarant during this witness is the declarant, he may be crossphysical 

or mental shock, a stress of ner- time period which determines the admis- examined and have his credibility subjected 

vous excitement may be produced in a per- sibility. 

to substantial attack before the trier of 

son which momentarily still their reflec-~ In determining the emotional status of fact.97 If the witness is not the declarant, 

tive faculties and removes their control, so the declarant at the time of the statement, he may be cross examined as to the cirthat 

the utterance which then occurs is a the court may consider "any" non-priv- cumstances surrounding his receipt of the 

spontaneous and sincere response to the ac- ileged evidence which may assist it in mak- information to aid in the evaluation of the 

tual sensations and perceptions aiready ing that determinati~n.~s One factor the ~tatement.~~ The witness is not required to 

produced by the external Since court may consider is whether the victim have had an opportunity to observe and 

this utteranceis made under the immediate failed to make a complaint to the first per- Eheck what the declarant described before 

and uncontrolled domination of the senses, sons after the offense.86 Another factor the the statement is admitted into evidence.99 

rather than reason and reflection and when court may consider is whether the victim A present sense impression unlike an ex- 

November 1987 1 VOICE for flre Defense 33

cited utterance does not require a startling 

event. The event may be one which the 

average person finds exciting or one which 

the declarant finds unexciting. The basis 

for the present sense impression rule is not 

the nervous excitement produced by the 

exposure of the declarant to a startling 

event but rather the contemporaneousness 

of the statement with the event.loO 

A present sense impression differs from 

an excited utterance in two other signifi- 

cant respects. First, the present sense im- 

pressiom must "describe or explain" the 

event or condition whereas the excited ut- 

terance need only relate to the event or 

condition. The former is limited to a de- 

scription or explanation of the event or 

condition and, in the absence of a startling 

event, may extend M farther, while the lat- 

ter need only "relate" to the startling event 

thus affording a broader scope of the sub- 

ject matter covered.l01 Second, the time 

element for the present sense impression 

extends no farther than the time needed for 

translating the observation into speech,lO' 

whereas the time element for the excited 

utterance may extend as far as the dura- 

tion of the stress caused by the startling 

event. While distinctions between present 

sense impression and excited utterance 

serve to resolve close cases, as a practical 

matter the majority of thecasesin criminal 

law will involve some type of startling 

event.'03 

If a statement by a rape victim is made 

which is not the result of a startling event 

or the result of a present sense impression, 

then the statement may beadmissible under 

the theory of "bare fact complaint." 

Bare Fact Complaint 

The bare fact complaint or outcry, has 

been applied historically in rape cases. Its 

use gradually spread to other types of sex 

offenses such as indecency, sex assault and 

aggravated sex assault. Today, it is a well 

settled evidentiary proposition that state- 

ments constituting a rape victim's com- 

plaint are admissible in the state's case in 

chief as direct evidence without regard to 

the spontaneity thereof.10' While this 

'*may seem somewhat inconsistent with the 

rule that no witness or party may thus 

bolster up, by proof of prior consistent 

statement, before the opponent has at- 

tacked him by impeaching evidence, the 

exception in this case is warranted by the 

usually strong popular aspersions which 


would he cast upon the [complainant] by 

failure to complain in cases of rape."lO' 

Such statements are admissible to cor- 

roborate the victim's testimony. Thus, the 

bare fact complaint is only admissible if 

the victim testifies.lo6 

The proper rule of bare fact complaint 

should require that where the complai- 

nant's credibility has not been impeached 

the testimony of the witness(es) to whom 

such complaint has been made, should be 

limited to the "mere" fact of the com- 

plaint, including only as much of the com- 

plaint that identifies the occurrence com- 

plained of with the crime charges. Any 

fuaher discussion would be immaterial for 

the purpose of corroboration. Thus, unless 

the bare fact complaint qualifies as an ex- 

cited utterance, present sense impression, 

or as some other exception to hearsay, the 

details of the offense and identity of the ac- 

cused are not permitted.'07 

If the victim fails to make a complaint, 

evidence of that fact may be given by the 

defense.los But where this is done, the state 

may show why no complaint was made.Io9 

If the victim does make a complaint then 

that complaint may qualify nnder the fourth 

and final hearsay exception, to wit: "Hear- 

say Statement of a Child Abuse Victim." 

Hearsay Statements of 

Child Abuse Victims 

Art. 38.072 Tex. Code Crim. Proc. 

allows hearsay statements ofa child abuse 

victim nnder certain enumerated condi- 

tions. One of the conditions is that the 

statement he one involving an offense such 

as indecency with a child, sexual assault 

of a child, aggravated sexual assault of a 

child, or any other designated offense. 

Another condition is that the statement be 

one by the child, 12 years of age or 

younger, against whom the offense was 

allegedly committed. In addition, the state- 

ment must be one that describes the alleged 

offense. The details of the offense are ad- 

missible only if the statement was made to 

the first person, 18 years of age or older, 

other than the defendant, to whom the ch31d 

made a statement about the offense.L10 

A statement that meets the aforemen- 

tioned conditions are not inadmissible be- 

cause of the hearsay rule if: (1) On or 

before the 14th day before the date the pro- 

ceeding begins, the party intending to of- 

fer the statement: (a) notifies the adverse 

party of its intention to do so; (b) provides 

the adverse party with the name of the wit- 

ness through whom it intends to offer the 

statement; and (c) provides the adverse 

party with a written summary of the state- 

ment; (2) the trial court finds, in a hear- 

ing conducted outside the presence of the 

jury, that the statement is reliable based on 

the time, content, and circumstances of the 

statement; and (3) the child testifies or is 

available to testify at the proceeding in 

court or in any other manner provided by 

law.'", 

The rationale for Art. 38.072 is to make 

it less difficult to obtain a conviction in sex- 

ual offenses involving children."' Art. 

38.072 was not designed to supersede any 

existing law but to be used in addition to 

or as an alternative to existing law.lL3 One 

particular situation this article was de- 

signed to cover is the case where a child 

would relate to a teacher or other adult the 

details of the offensemore than six to eight 

months after the offense.I14 This seems to 

be fair because of the unique problems 

caused by sexual assaults on children. In 

Hill v. State, 658 S.W. 2d 705,709 (Tex. 

App.-Dallas [5th District] [1983]) Justice 

Gnillot, in his dissent, recognizes the 

unique problems involving children when 

he stated: 

"[i]t does not make sense to require 

a child's testimony to be corrobo- 

rated just because that child fails to 

inform anyone of the violation within 

six months. In most insances, the 

cases involving sexual abuse and 

rape of a child are one that involve 

a father, a relative or someone close 

to one of the child's parents. And, 

more often than not, the perpetrator 

has threatened the child with death 

or severe injury if she or he tells 

anyone. What child, under these cir- 

cumstances, would not hesitate to 

make an outcry? Under the best of 

circumstances every child has a 

healthy fear of his or her parents-- 

especially the father-but, nnder cir- 

cumstances in which there is sexual 

abuse by a threatening father, that 

healthy fear becomes terror. It takes 

monumental courage for a child to 

inform someone that his or her father 

has committed sexual ab~se.""~ 

Justice Clinton, in his concurring opinion 

in Hernandez v. State, 651, S.W. 2d 746 

(Tex. Crim. App. 1983), also realized the

difficulty of obtaining a conviction in a sex App. 1983) a doctor was permitted to medical history, (2) past orpresent sensaoffense 

case against children by stating: testify that the child victim had received tions, and (3) inception or general causes 

a fiveinch skull fracture and a deep lacera- of the disease or injury. A11 three types are 

''tilt is felt that much of the problem 

tion above the left eye as a result of a blow. admissible where they are "reasonably 

associated with the reporting a pros- 

This testimony was admitted to prove ser- pertinent to diagnosis or treatment." The 

ecution of rape is that the present 

ious bodily injury in an aggravated sexual role changed prior law in two main points. 

statutes discourage the reporting and 

assault case. In Brown v. State 649 S.W. First, the rule adopted an expansive approsecution 

because of the embar- 

2d 160 (Tex. App. [3rd Dist] 1983) the ex- proach by allowing statements concerning 

rassment to the victim and difficulty amining physician was permitted to testify past symptoms and those which elated to 

in obtaining a con~iction."~ 

as to statements made to him by the rape the cause of the injury. Second, the rule 

The statutes referred to by Justice Clinton victim that he was sexually attacked by a abolished the distinction between the docwere 

those preceding Article 38.072. man. This hearsay statement by the victim tor who is consulted for the purposes of 

Aaile38.072, spontaneous utterances, was admissible to show the basis for the treatment and examination for the purpose 

present sense impressions, and bare facl physician's opinion that the victim's ten- of diagnosis only; the latter usually refers 

complaints collectively give rise to a new derness in anal-sphincter region was con- to a doctor who is consulted only in order 

and bmader meaning of complaint witness sistent with being the victimof a sexual at- to testify as a witness. 

for purposes of proving sex offenses tack. The expert's opinion also served to The statements which are likely to genagaina 

children. 

prove penetration in the sexual assault erate the most controversy during litigation 

case. In both Francher and Brown the a* those which are made for the purpose 

Expert Testimony 

testimony of an expert witness was offered of medical diagnosis or treatment de- 

The final manner of proving a sex of- as independent proof to prove a required scribing "the inception or general charfense 

is by expert testimony. Expert testi- element of the offense. 

acter of the cause or external source 

mony is useful in sex offense cases to In addition to being used as independent thereof", that is, facts which go &to details 

either prove an element of the offense or proof, the expert'stestimony may also he of the offense. The key question in resolvsupport 

the credibility of a witness or both. used to support the credibility of the vic- ing the controversy is whether these state- 

Before discussing the benefits of expert tim. In Perez v. State, 653 S.W. 2d 872 ments were reasonably pertinent to diagtestimony, 

a brief discussion is required as (Tex. App.-Corpus Christi 119831 rev. nosis or treatment. The rationale behind 

to who is an expert and what type of testi- ref.) the court upheld the admission of a the mle has been often stated.lz2 Namely 

mony may he considered expert testimony. rape counselor's testimony on passive the patient has a strong motive to tell the 

An expert is one qualified by "knowl- resistance as a preventive technique in sex- truth because diagnosis or treatment will 

edge, skill, experience, training, or educa- ual assault incidents. In Clayton v. Stare, depend in part upon what the patient 

tion."'17 The fields of knowledge which 139 Tex. Cr. R. 86, 138 S.W. 2d 1084 says.123 It is thought that the declarant's 

may he drawn upon are not liitedmerely (1%0), the court permitted a doctor to motive guarantees sufficient trustworthto 

"scientific" and "technical" knowl- testify that the events as experienced by the iness to allow an exception to the hearsay 

edge, but extends to all "specialixed" female rape victim would create in the rule.12" 

kn~wledge."~ Thus an expert witness may mind of a sensitive woman suicidal emo- The type of statement allowed should be 

be a physician, psychologist, rape coun- tions. In this case the woman had attempted as to what happened rather than who 

selor, or social worker. The type of testi- to commit suicide three days after the event caused it. The former in most cases is permony 

received into evidence as expert and the nrosecution used this testimonv to tinent to diaenosis and treatment while the 

testimony must be that which would assist su&rtLer credibility. Perez and ~t$ton latter would~eldom, if ever, be sufficiently 

thej~ry."~ Where the subject matter of the are just two of a number of cases which related.lZs 

testimony will assist the jury, an expert will allow the credibility of a witness to 

may testify as to his opinion, based upon be supported by expert testimony. 

Conclusion 

facts or data perceived by or make known The primary basis for admitting expert 

to him at or before the hearing. His opin- testimony into evidence is Texas Criminal Effective prosecution of sex offenses 

ion, however, must be based upon the facts Rule 803(4). The rule provides that against children requires a special balancor 

data reasonably relied upon by experts "[sltatements made for the purposes of ing of the interest of society, rights of the 

in the particular field.'20 Thus, the expert medical diagnosis or treatment and de- victim and rights of the defendant. It means 

may base his opinion "entirely" on hear- scribing medical history, or past or pres- more than just ohtaining a conviction of an 

say, or otherwise inadmissible data, pro- ent symptoms, pains, or sensations in the accused at all cost hut instead requires a 

vided the data is reasonably relied upon by inception or general character of the cause vast understanding of the various principlm 

other's in the expert's field and provided or external source thereof insofar as rea- and theories involved. Effective prosecuthat 

his testimonv would assist the trier of sonably pertinent to diagnosis or treat- tion requires a knowledge of the type of 

fact. 

ment. "I2' 

offenders who comqit sex offenses, the ef- 

The expert's testimony may he useful in This new role significantly liberalized fect the offense has upon the victim, the 

proving one of the required elements of a prior practice concerning purposes of effect the criminal justice system has on 

sex offense involving a child. In F~nrtcher medical diagnosis or treatment. Rule the victim, the offenses involved, and the 

v. State 659 S.W. 2d 836 (Tex. Crim. 803(4) admits three types of statements; (1) manner of proving the offenses. 

November 1987 / VOICE for the Defense 35

The offender primarily responsible for 46. Tex. Crim. R. Evid. Rule 642. 

504,59 L. Ed. 2d 774; Prim v. Slate. 496 S.W. 2d 

committing sex offense against children is 47. Tex. Crim. R. Evid. Rule 60l(a)(2). 103 (Tex. Crim. App. 1973); Onega v. Slate, 462 

48. See Warsort v. Slm, 596 S.W. 2d 867 (Tex. S.W. 2d 296 (Tex. Crim. App. 1970). 

the pedophile. The pedophile may be a Crim. Am. 1980) as an examde of the difficulty of 74. Eoahvrighl v. Stole 94 Tea. Cr. R. 87, 249 

"fixed pedophile." one having an exclu- ~tluirineEhildren to tske or ;ndentand the oath. S.W. 1075 (1923); Robemon v. Sme (Cr. App. 1899) 

sive preference for prepubertal children, i9. S& Watson. supra at 870-871. Recollectron 49S.W. 398; Olwson v. Stole (1884) I7 Tex. App. 

or a "regressive pedophile", one who has is usually merged into narrafion. 

292 -. - 

50. Walson, srpra at 870-871. 

a crisis oriented preference for children. 

75. Myers v. Sf&, 105 Tex. Cr. R. 426,289 S.W. 

51. Nicholas v. Slate (1925) 99Te~i. Crim. R. 504, 49 (1926); Marion v, Slate 80 Tex. Cr. R. 478, 190 

Pedophiles may also be divided according 270 S.W. 555,556: 

S.W. 499 (1916). 

to their means for achieving the desired 52. Gardo v. Srare, 573 S.\V. 2d 12 (Tex. Cnm. 76 Tex. Crim. R. End 8 8Q3(2). 

sexual contact. Nan-pedophiles form a sec- App. 1978). 

77. See generally, Hamrd v. Sfare. I I I Tex. Cr. 

ond and residual class of sex offenders. 53. Mar& v. Stole, 629 S.W. 2d 253,254 flex. R. 539, 15 S.W. 2d 638 (1929). 

Ape.-Corpus Christi 119821 no writ). 

78. Althoueh 

This class is basically composed of peo- 

- the ~hrase "soontanems and 

54. Relevant ev~dcncemeans evidence having any unreflecting statement" is not used in Criminal Rule 

ple who do not exhibit pedophilia as a tendency to make theexistence of any fact that is of 852(2), the rule is dined at provid~ng some ssfeguards 

primary behavior pattern but may, onrare consequence to the determination of the action more of reliability for its admissions =an exception10 the 

occasions, engage in sexual activity with probable ar less probable than it would he without hearsay rule S9e elearly eg. McCarmick's Hmdbook 

the widme. Tex. Crim. R. Evid. 401. 

a child. 

ofthe Law of Evidence Q 297, at 704 (2d ed. 1972). 

55. See, eg., West v. Stare, I41 Tex.Cr R. 233, 79. See Rav 

The effects of the pedophilic and non- 

.- P 915 n. - 157: Armable. ?his type of 

147 S.W 2d 791 (1941) 

statement may also qualify a present-iense 

pedophilic offender's attack on children 56. Klinedisr v. Slate, 159 Tex. Cr. R.510, 265 imo-ion. 

can he devastating. Depending upon the S.W. 2d 593 (1953) cert. den. 347 U.S. 930.98 L. i0. Oullmvv. Sfate, 125 Tex. CI. R. 636.69s W. 

age and development of the child, he or Ed. 1082, 74 S. Ct. 534. 

2d 120 (1934). 

57. hlum v. Slate, 449S.W. 2d 65 (Tex. Crim. 81. See William v. Slale, 145 Tex. Cr. R. 536. 

she can suffer social and emotional dis- App. 1969); See generally, SRinner v. Slnle, 144 170 S.W. 2d 482 (1943); see also Slough, "Sponorders. 

An enhancement of these disorders Crim. 616, I65 S.W. Zd(1942); Hart v. Stute, 139 tanmus Statement and State of Mind," 46 Iolm L. 

has often times occd through our crim- Crim. 101, I38 S W. 2d 818 (1940). 

Rev. 224,243 (1961). 

inal justice system. Delays, court room at- 58. Costillo v. Sfnre, 147 Tex. Cr. R. 494, 182 82. Haiev v. Slote 157 Tex. Cr. R. 150.247 S.W. 

S.W. 2d 718 (1944). 

mosphere, and the lack of understanding 

2d 400 (19;~). Sa. Guntrully CuliNo v. Stole 134 

59. Lewis v. Store, 154Tex. Cr. R. 329,226S.W. 'Tw. Cr. K. 217. 115 S.W. 2J413(193X) (slatc~ltcnt 

have caused the child to encounter addi- 2d 861 (19SO), See also, Rods v. Slate, 105 Tex. made aRer kzdnapping). 

tional stress. 

Cr. R. 392,289 S W. 52 (1926); which held that it 83. The assumption here is that the condition of 

Effective prosecution also requires an is not not proper to ask the victim if she would have sufferingexist from the timeaftheinjury to hem&understanding 

of the type of sexual of- mnsonted if the defendant had sought to have inter- ing of the statement See Freeman v. Stale 91 Tex. 

course with hcr on a date subsequent to that alleged Cr. R. 410, 239 S.W. 969, 971 (1922); See also 

fenses involved and the manner of prov- in the indictment 

Wili~ams v. State 145 Tex. Cr. R. 536, I70 S.W. 2d 

ing the offense. An understanding of the 60. BQWII~ v. Stole, 685 S.W. 2d 472 (App. 2 Dm. 482 119431 

offender, the victim, and the criminal 1985). 

84: ~e,t;ell v. Slate, 34 Ten. Cr. R. 260, 30 S.W. 

justice system will enable the bench and 61: Sinrsv. Slate, 156Tex. Cr. R. 218.240S.W. 226 (1895). 

2d 297 (1951). 

bar to apply that understanding to the pros- 

85. Tex. Crim. R. Evid. Rule I04allow thecoua 

62. Nk v Slate. 150 Tex. Cr. R. 66, 198 S.W. to consider any evidence, excqt that which is in wok 

ecution of sex offenses. 

2d 907 (1946). 

tion of a privrle~e, in determinmp . the admiss~hrliry 

In closing, it is hoped that article will 

. 

63. Tex. Cwle film. PEW. Ann. art. 38.07 (Ver- of evidence. - 

be a reminder to those of us in the legal non 1985). 

86. Gri@tlt v. Slate 142Tex. Cr. R. 559, 155 S.W. 

field that laws and decisions which oro- 64. Id.; See Waldrop v. Stare, 662 S.W. 2d 612 2d 612 (1941) (Here the complaint made after the 

ffex. Am. 14 Disk 19831. 

child came from the movies.) (Held details 

mote injustice through a lack of ugder- 65. T&. Cade. Crim. PA. Arm. art. 38.07 (Ver- inadmissible). 

standing are just as dangerous as the in- nnn - 19KO - --, 

87. Tex. Crim R. End 803(2). 

justice sought to be constrained. 66, See getzerally Awlin v. State, I I3 Ter. Cr. R. 88. Lawv. Sfare 133Tex. Cr.R. 627,113 S W. 

217, 18 S.W. 2d 676 (1929). 

2d 909 (1938). 

67. G@Ih v. Stale, 142 Tex. Cr. R. 559, 155 89. See Hvles v. Stale 130 Tex. Cr. R. 154. 92 

S.W. 2d 612 (1941). 

S.W. 2d 450 (1936). 

68. Murlev v. Stnle. 105 Tex. Cr. R. 276. 288 90. American General Insurance Co. v. Colemarr 

35. The Utles of "Sewal Assault" and "Ag- S.W. 441 (1626); Mclnlosh v. Stale, 91 Tex. Cr. R. I57 Tex. 377, 303 S.W. 2d 370 (1957). 

gravated Sexual Assault" do not contain the words 392, 239 S.W. 622 (1922). 

91. A8my v. Slale 143 TM. Cr. R. 252, I57 S.W. 

"of a child", ho~.ever for sake of clarity these wards 69. Chavez v. State, I07 Tex. Cr. R. 239, 296 2d 924, Texosh,lentrSnn Rwy. W. V. Hughes (Com. 

wdl be used. 

S.W. 554 (1927); see also Tex. Jut 3rd, Criminal App. 1932) 53 S.W. 2d 448 (1941). 

36. Texas Penal Code 5 21.11(a). 

Law B 394, sufficrency of carrobaration, and cases 92 If the element of spontaneity exlsr each tulle 

37. Texas Penal Code Q 21.01. 

crted thereunder. 

each outcry is made, then he statements resulting 

38. Texal Penal Code 4 Zl.ll(b>. 

70. Skiyp v. Srate, 132 Tex. Cr. R 274, 103 S.W. therefore are admissible. See Halq v. Stale 157 Tex. 

39. Texal Penal Code $ ZI.II~C). 

2d 976 (1937). 

Cr. R. 150, 247 S.W. 2d 400 (1912). 

40. Texas Penal Code $21.1l(d). 

71. nmnom~t v. Stole. 70~cx. Cr. R. 610. 157 93. Retdv. Slate 105 Tex. Cr. R. 147,287 S.W 

41. Texas Penal Code g 22.01 I(*). 

S.W. 494 (i913); see also, Lee 13. Stale, 145 Ten. 269 (1926) andBruge v. State 73 Twx. Cr. R. 505, 

42. Texal hnal Code $22.011(~). 

Cr. R. 531, 170 S.W. 2d 481 (1943). 

167 S.W. 63 (1914) (statement as origlnal ev~dence); 

43. Texal Penal Code $ 22.021. 

72. Hill v. Shlte 672 S.W. 2d 302 (Tex. App.- Sce Williants v. Srarc. Tex. Cr. R. 536. I70 S.W 

44. Tex. Crim. R. End. Rule 601(a). 

Dallas 15th Dist.] 1984). 

2d482(1943) sndKenneyv. Slale29S.W. 817 (Cr 

45. Tex. Crim. R. Evid. Rule 603 This rule is 73. This type or witness also called an outcry App. 1903) (slatement of incompetent chnld admlssisubject 

to the provisions afRule703 relating to opin witness. Hwster v. Stlrre, 572 S.W. 2d 702, (Tex. 

ion testimony by expert wmwes 

Crim. App. 1978) Cert. den 440 U.S. 961.99 S. Ct 

eonrinued o,z page 80 

36 VOICE for the Defense I November 1987

En Garde: The State's Rebuttal 

"Once the defendant makes a prima 

facie showing, the burden shifts to the State 

to come forward with a neutral explanation 

for challenging black j~rors."'~ The 

prosecutor's reason need not rise to the 

level justifying a challenge for cause. The 

prosecutor, however, may not rebut the 

prima facie case by stating merely that he 

challenged jurors on his intuitive judgment 

that they would he partial to the defendant 

because of their shared race.71 

Few Texas cases have delved into the 

legitimacy of a prosecutor's neutral explanations. 

In Rijo v. State,72 the court 

found the prosecutor's strike was exercised 

in the State's interest of a fair and impartial 

jury. The juror was struck because he 

had a cousin who had had problems with 

the law and because he had a bias against 

the range of punishment. SpecificalIy, the 

juror stated "that in his mind the amount 

of cocaine delivered would not affect the 

fine that may he assessed as part of the 

p~nishment."'~ The following reasons 

Batson v. Kentucky: 

A New Weapon for the Defense 

by Mark Thielman and Malinda Seymore 

Part II 

were considered satisfactory in Rodgers v. 

State? 1) juror was civilian employee of 

the police department and the prosecutor 

believed that he would not take a police of- 

ficer's testimony as seriously as would a 

private citizen; 2) prosecutor felt that juror 

distrusted her and that something seemed 

unfavorable; 3) juror did not respond to 

question of whether he had been involved 

in a criminal case as a witness or as an ac- 

cused, and prosecutor felt the juror's oral 

responses were not consistent with his re- 

sponses on the juror information card; 4) 

juror did not respond to question on juror 

information sheet asking if she had ever 

been a party to a lawsuit; 5) jumr bad a 

relative involved in a contemporaneous 

criminal proceeding; 6) juror seemed to 

distrust the prosecutor, failed to answer 

question on juror card asking about past 

involvement in criminal cases, and he ap- 

peared dissatisfied with the prosecutor's 

explanation that one need not steal the car 

to be guilty of unauthorized use of a motor 

vehi~le.'~ 

Malinda L. Seymore is a briefing attor- 

ney with the Fi$h Disnict Coun ofAppeals 

in Dallas andart instructor in the kgal As- 

sistant's Program at El Centro Community 

College. She is a graduate of Baylor 

Univet~ity School of Lnw and of Rice 

University. 

Mark A. llzielman is a research altomey 

with the Fij7h District Court ofAppeals,in 

Dallas and an instructor in the Legal As- 

sistantk Program at El Centro Community 

College. He graduated fi-om llze Univer- 

sity of Texas School afLaw iu 1986. He 

did his undergmduate work at Texas 

Christian University. 

In Chambers v. State,76 the court found 

that the prosecutor had legitimate reasons 

for striking two black members of the 

venire. The first person was a Jehovah's 

Witness, which the prosecutor believed 

was a fringe religious group. She was 

struck because her jumr card indicated that 

she was unmarried with two children. The 

second person was struck because the pros- 

ecutor did not feel that the man was atten- 

tive. The prosecutor stated that "I had a 

feeling he [the juror] was nodding his head 

a little bit too much toward you [defense 

attorney, and not enough towards me."" 

The court noted "that an explanation of 

'fringe religion member' or of 'body 

english' appear to this court to be suffi- 

ciently neutral."" The willingness of 

courts to accept body english as a neutral 

explanation raises serious questions about 

the effectiveness of Batson in Texas. Mini- 

mally, this reliance departs from the spirit 

of Batsan. In light of the Court of Criminal 

Appeals' decision in Keeton 11, which ap- 

pears to strengthen Batson, doubts remain 

November 1987 1 VOICEfbr the Defense 37

I 

as to the viability of the body english ex- 

planation. Allowing this kind of reason 

would reduce. constitutional guarantees to 

meaningless supe~ficialities.~~ 

Batson makes clear that the perempmry 

character of challenges remains unchanged 

except when used as a tool for discrimina- 

tion. A survey of cases across the nation 

reveals at least ten types of reasons which 

prosecutors may legitimately offer in sup- 

port of their challenges: 

the State was justified in ~triking.'~ 

Knows Participant 

In Phillips v. Stales7 one juror was ac- 

quainted with a State's witness and another 

juror knew the officer who arrested the 

defendant. Both were successfully struck 

by the prosecutor for heing too close to the 

personalities involved in the proceedings. 

Unfit for Jug Service 

Demeanor 

Where the prosecutor challenges ajuror 

because of his hairstyle, manner of dress, 

comic or hesitant response to questions, 

lack of eye contact or smirk, courts have 

held that the prosecutor has successfully 

rebutted the defendant's prima facie case.80 

In People v. Moss,s1 for example, suffi- 

Where the juror wasphysically unfit for 

tria1,88 fell asleep during voir dire," had 

dificnlty inunderstanding questions asked 

of her,90 or could not overcome a language 

barrier91 thecourts have held that the 010swas 

proper in peremptorily challenging 

these people regardless of race. 

cient reason was found because the juror 

had an unpleasant look on his face, was 

wearine dark elasses. velour shirt and gold Q - - 

chains. In addition, he read a newspaper 

Same Resideirtial Area 

When ajuror lives in area where lhe 

crime in question oc~urred,~' or near a 

in the jury box, sat away from the other 

jurors and crossed his arms. 

Inabili@ to Sit in Judgment 

Courts have affirmed peremptory 

challenges when the venirememher indi- 

cated reservations about fairly sitting in 

judgment. In People v. Orteqa,82 thejnror 

stated that it would be hard to sit in judg- 

ment on someone. Where a veniremember 

has expressed reservations about whether 

he could find someone guilty based upon 

certain types of evidence, courts have per- 

mitted peremptory challenges.a3 

Profession 

In Orfega, a social worker was stricken 

from the venire. The prosecutor reasoned 

thar social workers are soft on criminals.84 

In Commorrwealth v. Wood.85 both jurors 

were pursuing careers in medical fields. 

The case involved controlled substances, 

and required scientific evidence. The pros- 

ecutor feared they would question more 

critically the State's evidence. 

Previous Jucy Experience 

Prior jury experience may leave a ven- 

irememher unsatisfactory to a prosecutor. 

Where this specific juror caused "prob- 

lems" for the prosecutor or where a 

previous jury returned a not guilty verdict. 


defendant9' or key witness" the Prosecutor 

has advanced a sufficiently neutral reason 

for striking the prospective juror. 

Anti-Law Enforce~nent 

In Commonwealth v. 2h0mas~~ a juror 

did not answer her subpoena for jury duty 

and was arrested and brought into court. 

The prosecutor was afraid that this matter 

might prejudice her against the State. The 

court held that the strike was non-discriminatory. 

Relative in Legal Trouble 

A person may be struck because family 

members have had problems with the 

law.96 

Reasons Related to the Case 

Batson states that the prosecutor "must 

articulate a neutral explanation related to 

the particular case to be fried."97 An explanation 

is sufficiently neutral if the juror 

shares some characteristic other than race 

with the defeudant.g8 Further, if the juror 

is inappropriate for some reason directly 

related to the case peremptory challenges 

have been ~pheld.9~ In United Stales v. 

Tucker,'o@ the court held that the prosecutor 

was justified in striking four blacks 

in a white collar crime case because he 

wanted educated jurors who could under- 

stand complex commercial transactions. 

In conclusion, the State may offer neutral 

reasons for strikes which may appear 

facially to be motivated by race. An explanation 

offered in good faith, which later 

is discovered to be in error, has been held 

to be sufficient rebuttal. In People v. 

Davi~,'~' the appellate court accepted the 

prosecutor's explanation that a jurm had 

been late on three occasions although it 

was apparent from the record that theprosecutor 

had conhsed this venireperson with 

another. 

Parrying the Thrust: Responding 

to the State's Rebuttal 

Because both Batson and Keeton II 

placed great reliance on the ability of trial 

judges to decide these issues, it is essential 

that defense counsel meet the prosecutor's 

explanations when they are presented. 

The best technique in overcoming 

a prosecutor's arguably neutral reason is 

to demonstrate inconsistent behavior within 

the peremptory challenges. In People v. 

Wa~hingfon,'~~ the prosecutor stated that 

he struck a juror because her children were 

the same age as the defendant. Two other 

jurors with children of similar age, however, 

were not struck. Where the prosecutor 

struck hispanics who had said that 

they had never thought about the death 

penalty before but did not strike whites 

who responded similarly, the court found 

the prosecutor's excuses unpers~asive."'~ 

Similarly, the court was unpersuaded when 

the State struck one hispanic for heing verbose 

and another for answering hesitantl~.'~~ 

When the excuse given bears little relation 

to the particular case, courts may take 

a harder look at it. In Commonwealth v. 

DiMatteo, the prosecutor claimed to have 

challenged the juror because she was a 

widow. The court found that this was only 

a tenuous indicator of individual bias in a 

robbery case and disallowed it.'os 

Binding the Wounds: Remedies 

Batson suggests two possible remedies 

upon a trial court's finding of purposeful 

discrimination: 1) discharge the venue and 

select a new jury from a panel not pre- 

viously associated with the case; 2) dis- 

allow the discriminatory challenges and 

resume selection with the improperly chal- 

lenged jurors reinstated on the venire.lo6

Another possible remedy may he to permit 

the defendant additional peremptory chal- 

lenges. This may permit him to counter the 

harmful effects of the prosecutor's dis- 

criminatory actions by allowing jurors who 

might otherwise he unable to serve to reach 

the jury. 

Of all the suggested remedies, reseating 

challenged jurors appears to be the most 

beneficial to the defendant. This forces the 

prosecutor to accept jurors previously 

stricken. This, of course, requires that the 

objection be presented before the venire 

has been dismissed.107 

he used to gamer full benefit from this new 

doctrine are suggested below. It is, however, 

in no way intended as a comprehbnsive 

list. 

Although it has been limited strictly to 

race in Texas, other states have applied the 

ideas of Bason embodied in their own constitutions 

and in the sixth amendment to 

gender as well."* The fourteenth amendment 

of course, extends beyond race and 

the opportunity to argue the Batson 

analysis on the basis of gender or religion 

may present itself. 

No court has addressed the possibility 

a witness,'during the Batson hearing, the 

veniremember whom the prosecutor 

claimed smirked, twitched or nodded in the 

direction of one party. The defendant may 

then ask the prospective juror if such 

behavior occurred. While testimony deny- 

ing the behavior may not he condusive, 

it offers the defense some means to rebut 

the claim of body english and may sway 

either a trial judge or an appellate court. 

Oneproblem with this tactic is that it limits 

the remedies available to thedefense if pur- 

poseful discrimination is found. The State 

hay successfully argue that the testifyhig 

that a State's neutral explanations, hecauk venircpcrborl has been taintcd and cannot 

A New Uatt'egro''nd: of . their . disoaratc -. itnoact uoon minorities. be relttrned to the venire. Second, a defcn- 

r- -- r r 

Botson placed a great reliance upon the are themselves discriminatory. In Tucker, dant may seek to videotape the voir dire 

trial court to determine when purposeful for example, the accepted neutral reason examination in order to provide for the trial 

discrimination exists.108 Since the trial for eliminating black veniremembers was and appellate court a visual record of the 

judges are called upon to make fmdings of that they had little education and were proceedings. This would allow the courts 

fact, their determinations are entitled to unable to comprehend complex commer- to establish theveracity of the prosecutor's 

deference on appeal.Io9 One appellate court cial transactions.'t5 Batson bases its statements of nodding, twitching, or of 

in Texas has read this language to permit analysis on Title VII employment discrimi- gold earrings and hair length. Traditionreversal 

only where the decision of the, nation cases, and states that "circum- ally, however, judges are reluctant to perlower 

court is clearly erroneous."@ The stantial evidence of invidious intent may mit videotaping within their courtrooms: 

heavy burden of one seeking to reverse the include proof of disproportionate im- In addition, such actions may involve the 

trial court's Batson determination on ap- pact. " ~ Thus, 6 defendants may argue that appellate court in independent fact 

peal illustrates the necessity of building a although facially neutral, the reasons pro- findings. 

complete record. Failure of the defendant vided by the prosecutor effectively serve In conclusion, Barron v. Kentucky proto 

request recording of the voir dire or to to eliminate minoriti~s from his jury. vides a new sword in thearsenal of the deidentify 

accurately the jurors questioned Batson recognizes that peremptory chal- fense counsel. The full potential of this 

may prove fatal to the appellant.lL1 lenges "constitute a jury selection practice weapon has yet to he realized. Batson, 

In cases where the trial court neglected that permits 'those to discriminate who are however, can only serve the defendant and 

to hold a Batson hearing or to enter find- of a mind to dis~riminate'."~~' Challenges his attorney if the error is properly preings 

of faet the appellate court will abate for cause are less suspect; however, one served and presented hothat the trial court 

the appeal and remand to the trial court for court has suggested an examination into and on appeal. The astute lawyer must also 

such action.lL2 This would appear to be the these challenges to provide clues to the be aware of the potential remedies which 

appropriate remedy in a case where the racial nature of the peremptory chal- he may call for should he prevail on a chaltrial 

court determined that a prima facie lenges.'18 If defense counsel believes that lenge. Hopefully, this article has honed the 

case was not established hut was later the prosecutor is seeking to accomplish by sword that defense counsel must wield. W 

reversed on appeal. A remand should fol- challenge for cause discrimination which 

low to allow the prosecutor to offer suffi- is no longer tolerated through the system 

ciently neutral reasons for his actio~s."~ of peremptory challenges, Simpson may 

assist in an ohiection. 

Sharpening the Sword It appears ai this point that the chief 71. Id. 

threat to the viability of Batson is the will- 72. 721 S.W.2d 562. 

Conclusion 

73 Id. at 564. 

ingness of Texas courts to accept body 74. No. OI-860370-CR flex. App.-Houston [lst 

The law in the area of racially based english as a sufficiently neutral reason for Dist.] February 12, 1987, pet. pending) (not yet 

peremptory challenges is in astage of rapid striking jurors. Clearly, clues as to recep- rewrtedl. 

change and development. Perhaps the tiveness of a juror may be obtained through i5. id. at 5-6. 

76. No. 

cases will be obsolete by the time this ar- mannerisms that the juror displays. The 

B14-85 947-CR (Tex. App.-Houston 

[l4th Dist.] Decenlbr 11, 1986) (not yet repafled). 

ticle is printed. It has, nonetheless, at- prosecutor's reliance upon such manner- 77. Id. at 5. 

tempted to survey both locally and na- isms, however, is unreviewableon appeal. 78. Id. 

tionally, cases which have employed the To controvert these excuses, the defense 79. People v, Trevim. 704 P.2d 719, 733 n.25 

ideas of Batson v. Kentncky. There is still, counsel most seek to build a record which (cat. mi). 

80. Wheeler. 583 P.2d at 760 iclotheshairstyle); 

however, many areas remaining to be ex- establishes them as shams. Two possible Cornrm~~wenlflt v. Lallimore, 486 N.E.2d 723;725 

plored and many opportunities for creative means readily present themselves. (Mass. 1985) (male juror with eamng); UnifulSfales 

lawyering. A few techniques which may First, the defendant may seek to call as a Moliltrews, 803 F.Zd 325, 331 (7th Cir. 1986) 


(hastile to prusccutorlhesilsnt ~punse1pn;Nrc sbwing 

disinterat); UnitedSrm~r v. Chmpbrll, 7ffi P.2d 

26.27 (In Cir. 1985) ("demeanor"); UniredSlorer 

v. Olnlidne, 808 F.2d 1064, 1071 (5th Cir. 1987) 

(avoided eye contact); Commonwd~h v. Kelly, 406 

N.E.2d 1327,1328 Mass. Am. l980l fdkl: Pmple 

v. Dw;s,~234 C& ~pIr.'d5~. 869 i~al. 2 

Dirt. 1987) (laughing and joking); People v. Walkr. 

205 Cal. Rptr. 278.279-W (Cd. App. I Dirt. 1984) 

~camic). 

81. 233 Cal. RpIr. 153, 159 (Cal. App. 2 Dist. 

tOllh> .,"",. 

82. 202 Cal. Rptr. 657, 662 (Cal. App. 5 Dist. 

1984); see alse People v. Peters, 494 N.E.2d853, 

861 (Ill. App. 2 Dist. 1986); Unired Stmes v. 

Hadim. 781 F.2d 1483.1485 (1 llh Cir. 1986); People 

v. Davis, 234 Cat. Rptr. at 869. 

83. People v. Chambie, 234 Cal. Rptr. 308, 31 1 

(Cal. App. I Disc 1987) ("great" possthllily that 

woman would lie about being raped); Unired States 

v. Matthews, 803 F.2d at 331 (covert taping); Peo- 

ple~. %wSon, 504N.YS.2d 115.117(A.D. I Dept. 

f986) (cannot mnvict of this crime). 

84. 202 Cal. Rptr. at 663. See also Simpon, 504 

N.Y.S.2d at 117 (ballistics expen); UniredSram v. 

Rarelifi 806F.2d 1253,1256(5thCir. 1986) (taught 

tax preparationlcaseof obstructing IRS); Peters, 494 

N.E.2d at 861 (comprallermelieved to be too 

maiculous to serve in criminalease); Moss, 233 Cal. 

Rptr. at 164 (County employee); Chatnbie, 234 

CaLRptr. at 312 (law student); Johnsori v. Stare, 731 

P.Zd 993,999 n.3 (Okla. Crim. App. 1987) (profession 

generally considered to disfavordeath penalty). 

85. 451 N.E.2d 714, 719 Was. 1983). 

86. ~y~tonweal~e v. Smith, 428 N.E.2d 348,353 

n 7 (Mass. App. 1981); Cm,nonweal& v. Ihomas, 

Effective Prosecution 

471 N.E.2d 376, 378 (Mass. App. 19W; O w , 

202 CaLRptr. a 662 Oumr srsted that her previous 

jury experience had not been satisfactory.); Cham- 

bie, 234 Cal. Rpr. at 311. 

87. 4% N.E.2d87,89(Ind. 1986). SeeolsoSm 

v. Weidherqwn, 719 S.W.2d 3W, 307 (leiin. Crim. 

App. 1986); UniredSrores v. Andrude. 788 F.2d521, 

525 (8lh Cir. 198.3 (jumr knewdefendant's auorney). 

88. Simpson, 504 N.Y.S.2d at 117. 

89. Rarclifi 806 F.2d at 1256. 

90. Com!on!vealnt v. Slory. 440 A 2d 488.499 

(Penn. 1981). 

91. UnircdSratesv. &Ian, 8l2F.2d 1302, I312 

(10th Cir. 1987). 

9. 440A.2d at499; Davis, 234 Cal. Rptr. 

at 869. 

93. Moss, 233 Cal. Rptr. at 16Q 

94. Andrude, 788 F.2d at 525. 

95. 471 N.E.2d at378. SeealsoBueno-Hedez 

v. Stnre, 724P.Zd 1132, 1135(Wyo. 1986) (known 

to be anti-law enforcement); People v. Lester, 495 

N.E.2d 1278, 1290 (Ill. App. 2 Diat. 1986) (Personal- 

ly known by prasecutor to have prior criminal BMW 

previously in court on child custody matters). 

96. Rijo v. State, 721 S.W.2d at 565; Johnson v. 

Slate, 731 P.2d at 999 n.3; Phillips v. Snrre, 496 

N.E.2d at 89; Lallinlore, 486 N.E.2d at 725; Peo- 

ple v. Alaander, 205 Cal.Rplr. 387, 391 n.7 (Cal. 

App. 1 Dist. 1984). 

97. Barson. 106S.Ct. st 1723 femohesisadded) 

Ouror's son same age as defendant). 

59. Whdge, 808 F.2dat 1070(&fendantaccused 

ofoprallng marijuana ring becauseof financial hard- 

ship aRer separation. Juror who was young, wgle 

and unemployed lhwght tu be tm empalhetic.); fields 

v. I'm~lr. 732 1'.2d 1145. 1157 (Culo. 1987) (Defcndant 

s&~sedofshootine emolaver after behe fired. 

lumr said that he'd he& fikdbeforc and &ltrhke 

killing someane.). 

100. 773 F.2d 136,142 (7th Cir. 1985). See also 

Ha~?Cim, 781 P.2d at 1485-86. 

101. 234 Cal. Rptr. at 871. 

102. 234 Cal. Rpr. 204, 210 (CaLApp. 4 Dist. 

1987). 

103. Peritro, 704 P.2dat 733. 

104. Id. 

105. 427 N.E.2d 754,757 (Mass. App. 1981). 

1%. Barson, 1MS.Ct. at 1724n.24: See alsoRiley 

v. .%re, 496 A.2d 997, 1013 (Del. 1985). 

107. Henry, No. 1216-85 at 7-8. 

108. Batsm, I06 S.Ct. at 1724. 

109. Id. at 11.21. 

110. Rodgerr v. Slate, 01-86-0370-CR (citing 

United Stares v Mnlhmus, 803 F.2d at 331.). 

1 11. People v. Momles, 510 N.Y.S.2d 756,757 

(A.D.3rd Dept. 1987); Baeno-Hcmandez, 724 P.2d 

at 1134; Peters, 4% N.E 2d at 861. 

112. Henry, No.I21&85at 9; See alsoPeople v. 

Hocken, 503 N.YY.Zd995,995 (A.D. I Dept.1986); 

People v. Bi~hop, 400 N.W.2d 643, 603 (Mich. 

1987); UnitedStafes v. David, 803 F.2d 1567, 1570 

(Hth Clr. 1986). 

113. Wise v. Stare, 346 S.E.Zd393.393 (Ga App. 

19Xhi 

11i. Reid, 424 N.E.2d at 5W. 

115. 773 F.2d at 142. 

116. Batsorr, 106 S.Ct. at 1721. 

105. King supra, at 491 citing Ray, Law of 38.072. See note 10. 

Evidence 8 927,lA Tuas Practice 189, 190 (3rd ed. 112. Id. 

conrinued from page 36 

1980). 

113. Id. 

ble), Conrpore. C~tybfH~~Ionv. Quinmtes 142Tex. 106. See Reddick v. State, 35 Tex. Cr. R. 463, 114. Id. 

282, 177 S.W. 2d 259 (1944). 

34 S.W. 274. (1896) For a contrary vlew see Ray 115. Hill, infra, 709. 

94. Burnerv. Srare 15OTex. Cr. R 61, 184 S.W. 0927. 

116. Hernandez. infra 

2d 838 (1947); Trm~mnell v. Stare 145 Tex. Cr. R. 107. Gr@?/h v. Stare 142 Tex. Cr R. 559, 155 117. Tex. Crun. R. Bvld. 702. 

274. 167 S.W. 2d 171 (1942). 

S.W. 2d 612 (1941): Reddick v. Slate 35 Tex. Cr. 118. See Advisory Committee Note on Federal 

95. Tex. Cnm. R. Evid. &le 803(1). 

R. 463.34 S.W. 274, (1896). (overrulingprior cases). Rde . 702 .- 

96. See Morgan, "The Law of Evidence, The use of the female gender is by no means an 119. Tex. Crim. R. Evid. Rule 702; Hollon~ay v. 

1941-1945." 59 Haw. L, Rev. 481 (1946) at pp attempt to degrade the female population; it is used Srate, 613 S.W. 2d497.501 vex. Crim. App. 1981). 

574-6. 

only for the purpose of clarification since the majonty 120. See Advisory Committee Notes to Federal 

97 See Clearly E , McConnick's Handbookof the of the sex offense victims are female. 

Rule 703. 

Low of Evidence 298 at p. 861. 

108. Roxerv. State I Tex. App. 187, 191 (1876). 121. Ten. Crim. R. 803 (4) 

98 See Federal Advisory Committee's Note to 109. SeeFoster v. Srare 121 Tex. Cr. R. 499.53 122. See Notes of ~ dviws Committee on Pro- 

Rule 803(1) 

S.W. 2d 54.55; (1932); Breiger v. ,Sfare 99 ~ cx.~r. posed Rule.; I I Moore's Federal Practice 5803(4) 

99. Rule803(1) does not require corroboration by R. 292, 269 S.W. 100 (1925). 

141 > (19761 .-- -, 

the witness. For prior case law see Myers v. Sfore 110. Texas Code of Criminal Procedure art. 123. See Weinstein& lkrge, Weumin's E~ihice 

545 S.W. 2d 820, 827 (Tex. Crim App. 1977). XR - - m? -. 

803 - 125 (1979). 

1M). See Clearly, E. McCormick's Hotldbwk of The statute is the result of a recommendation by 124. This rule is thecounterpart af Federal Rule 

the Olw ofEvrdmce $298 at p 860 (26 ed. 1972); the Bear County District Attorney's Task Force On 803(4). Numerous decisions in the federal jurisdic- 

Morgan, "Res Gestae," 12 Wash. L. Rev. 91, 96 Child Abuse. It was enacted substantially as it was tionhavestaled the rafionale of federal Rule 803(4). 

(1937); Thayer, "BedingGeld's CaseDeclarations as drafted by the task force except the House required Smce the Texas Rule was based upon the federal rule 

a par1 of the Res Gestae," 15 Am. L. Rev. (1881). the person to who the statement was made to be the the rationale should also apply. 

101. See Advisory Committee's Note 56 F.R.D. first person and the senate requ~red such persons to 125. See Mat~ey v. United Stares, 112 F. 2d 538 

183. 303. 

be 18 years of ageor older. The House also added (Zd Cir. 1940) Judge Weinstein, in his treaties, rug- 

102. McCorn"ck 8 298 at 862 United States v. the availability of the chdd language. Thls ~nforma- gestedthat "a fact relrableenough toserve asahasis 

Peabocock 654 F. 2d 339, 350 (5th Cir. 1981). lion came from antntewiew withDan Morale, House for a diagnosisa also rehableenough to escape hear- 

IM. Seegenerally, Kiwv. Sfale631 S.W. 2d486 of Representatives. Rep. Morale is a member of the say proscription." Weinstein Berger, srpra, at 

Uex. Crim App. 1982). 

House Committeean Criminal Juris+wdence and the 803-129. 

1M. Kinav. State631 S.W. 2d486. 491 ITex. sponsor of Article 38.072. 

Cdm. ~ ppr 1982) aobcases cited thereunder. 111. Rom ~nrerview wilh sponsor of Anicle 

40 VOICE for the Defense I November 1987

On August 21, 1987, the Court of Appeals 

for the 5th Circuit placed its imprimatur 

of approval on the practice of 

calling informers who are being paid a 

contingent fee as witnesses for the Government 

in the trials of criminal cases within 

this Circuit. United States v. Cervantes- 

Pacheco, F . 2 d (5th Cir., 

#84-2687: decided Aueust ., 21. 1987) In its 

en banc opinion, the Court specifically 

overruled Willian~son v. United States, 311 

F.2d 441 (5th Cir., 1962). In Williamson, 

the Court had established a per se rule that 

an informer paid a contingent fee cannot 

be a competent witness. As the Court 

pointed out in Cervantes-Pacheco, however, 

the Court had not reversed a conviction 

based on that per se rule since its 

Williamso~~ decision. 

In Cervantes-Pacheco, the Court was 

confronted with this fact situation: Appellant 

had participated in "an active 

criminal enterprise engaged in importing 

marijuana from Columbia into the United 

States." The Government had an informer 

who had earlier worked in more than 35 

cases. At the Government's request, this 

informer infdtrated the Cervantes-Pncheco 

organization, furnished certain evidence to 

the Government and testified in the trial 

of the Appellant. The informer's compensation 

from the Government "included a 

per diem, expenses, and apayment at the 

conchtsion of the case based on the Government's 

evalaatior~ of his overall performance." 

(Emphasis added) 

Although the amount of the fee was to 

this extent contingent, it did not depend 

upon the arrest or conviction of the defendant 

or upon the outcome of the case. 

On appeal, the case was first argued 

before Circuit Judges Goldberg, Williams 

and Davis. In its first opinion of July 7, 

1986, found at 793 F.2d 689 (5th Cir., 

1986), the Court reversed. Judge Davis 

dissenting, and remanded for a new trial. 

Judge Goldberg concludes his opinion with 

this inspiring language: 

"We conclude on the basis of the 


The Federal Corner 

by F. R. "Buck" Files, Jr. 

F. R. (Back) Files, Jr. has been in the 

privatepractice of law irr Tyler since 1970 

and is with thefirm of Bain, Files, Allen 

and Caldwell, P. C. Hispractice is limited 

to the representation of defendants in crim- 

inal and civil rights nmtters. Before enter- 

ing private practice. he prosecuted and 

defended ~nilitary courts-martial for the 

U.S. Marine Corps (before they had a 

JAG) and served as a First Assistant Crirn- 

inal District Attorney in Smith Corrn/y. 

Certified as a criminal law specialist 

since 1975 and a charter member of the 

Texcrs Criminal Defense Lawyers Associa- 

rion, he is a frequent lectrrrrr at CLE 

corrrses sponsored by the State Bar of 

Texas and the CDLP. 

of the Government's main witness, 

informant Kelly, is inherently un- 

trustworthy and should have been 

excluded as such. We find no error 

in the trial court's handling of the 

conspiracy issue; but on the contin- 

gent fee issue we reverse and remand 

foregoing analysis that the testifiony 

the case to the district coud for a 

new trial. 

One of the basics of our jurisprudence 

is the search for truth, and by 

this is meant not the purchased truth, 

the bartered-for truth, but the unvarnished 

truth that comes from the lips 

of a man who is known for his 

integrity. A corollary of our search 

for truth, a component thereof, is 

that the plaintiff or defendant, prosecution 

or defense, as the case may 

be, vouches for the truthfulness and 

the integrity of its witnesses. The 

government in its prosecutorial efforts 

should be like Caesar's wife, 

above or beyond reproach. At the 

very least, the court must tell a jury 

that the words of a witness have been 

in a sense purchased if he will be 

paid, more or less, depending upon 

how effective his putative truthtelling 

sells itself to the jury. It may 

be that we must live with informers. 

It may be that we must live with bargained-for 

pleas of guilty. But we do 

not have to give a receipt stamped 

"paid in full for your damaging 

testimony" or "you will be paid 

'according to how well you can convince 

the jury even though it be in 

the face of lies. 

It is true that the precedents we 

cite are iid in their approach to this 

problem, fearful that somehow the 

condemnation of contingent fee arrangements 

will destroy our criminal 

justice system. If that be true, then 

our system of finding the truth is 

pallid and weak and not to be 

trusted. Trustworthiness is a keystone 

and a hallmark of any judicial 

system that seeks recognition for its 

role in a civilized society. The time 

has come to announce boldly and 

firmly that our juridical search for 

the truth cannot be reconciled with 

the virtual purchase of perjury." 

conrinrred mi page 48

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ENDORSER: Rick L. Cohen 

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Lubbock. Texas 79401 

(806) 765-7370 

ENDORSEg. Chuck Lanchart 

MEMBERSHIP DAZE: June 22, 

Rick L. Cohen 

2995 LBJ Freeway, Sle. 119 


(224) 484-7330 

ENDORSER: E. X. Martin 

MEMBERSHIP DATE; May 1, 1987 

Mtehael D. Curran 

1720 Avenue K. 

Plano, Texas 75074 

1214) 423-0422 

ENDORSER: George Roland 


Donald L. Curry 

720 Texas Avenue 

Lubbock, Texas 79401 

(806) 747417 

ENDORSER: Bill Wischkaemper 

MEMBERSHIP DATE' July 16. I987 

Edward N. Daneri 

630 Broadway 


(512) 226-8365 

ENDORSER: John C. Boston 

MEMBERSHIP DATE July 1, 1987 

James A. De&e 

2300 Memorial Blvd. 

Pon Arlhur, Texas 77643 

(409) 983-3234 

ENDORSER: Jeffrey Hinkley 

MEMBERSHIP DATE.. August 10, 1987 

Riddhi Desd 

11319 Mulholland Dr. 

Stafford, Texas 77477 

(713) 974-1584 

ENDORSER: Mark Mclntyre 


November 1987 I VOICE@? the Defense 43

Juan C. Duran 

3103 Bee Cave Rd., a22 


(512) 328-1312 

ENDORSFR; John C. Bodtan 


Jeffrey & Dyment 

806 Commerce 

Houston. Texes 77W2 

(713) 225-1426 

ENDORSEE Kerry P. WtzGerald 

MEMBERSHIPLMTE: Aprrl 10, 1987 

J. Mark Endehart 

P.O. I . -- o------- 

Box 3W9 

Longv $ew, Texas 75606 

(214) 758-3009 

ENDORSER: Glenn A. Perry 

MEMBERSHIP DATE: August 

Michael B. Fetter 

424 N. Center 

Ben Flnrey 

1210 Nueces, Ste. 100 


(512) 479-8641 

ENDORSER: Dain P. Whttwonh 

MEMBERSHIP DAD?: June 17, 1987 

Randall L. Freedman 

4026 Lemmon Avenue 

DalIas, Texas 75219-3736 

(214) 522-5530 

ENDORSER: Tlm Evans 

MEMBERSHIP D AE June 19, 1987 

James A. Fry 

'P.O. Box 758 

Sherman, Texas 75090 

(214) 868-0545 

ENDORSER: Buddv M. Dieken 

MEMBERSHIP D A June ~ 15, 1987 

Denise P. Gallo 

P.O. Box 2554 

Denton, Texas 76202 

(817) 383-4314 

ENDORSER: S. Camile Milner 

MEMBERSHIP DAIE: June 4, 1987 

David L. Gem 

Anger Gavlto 

100 N. 6th. Suite 5W 


(817) 755-0380 

ENDORSER: Lynn W. Malone 

MEMBERSHIP DATE? May 18, 1987 


Windel M. Gibson 

Suite 710, FNB Bldg. 

M~dland, Texas 79701 

(915) 687-4668 

ENDORSER: Jeffrey Hinliley 


B. Dwight Goains 

1612 Austin Avenue 


1817) 756-6277 

;~NI~ORSER: Lynn Wade Mnlnnc 

MEMBERSHIP IIATb.': Junc 17, 1987 

Valentin Gracia, Ill 

201 Main St., Ste. 6W 

Foa Worth. Texas 76102 

(817) 332-1531 



Jim Greeniield 

6243 IH 10 N.W.. #555 


(512) 736-lW3 

ENDORSER: Buddy M. Dicken 


Thomas R. Greft 

13740 Midway Rd., Ste. 604 


(214) 385-8007 


MEMBERSHIP DAll?: AAugu 4. 1987 

Royal GrNm 

16W Tower Lifc Bldz. 

Leon J. Grizmd 

1712 Rio Grande, Suite E 


012) 476 6640 

ENDORSER: E. G. "Gerry" Morris 

MEMBERSHIP DATE; May 28, 1987 

David R. Gutierrez 

317 People, Ste. 717 

Corpus Christi, Texas 78401 

(512) 883-8675 

ENDORSER: Douglas Tinker 


MEMBERSHIP 

Jim Pete Hale 

303 W. Broadway 

Brownfield, Texas 79316 

(8aSJ 637-7568 



Tom Hamna 

P.O. Box 16 

Beaumont. Texas 77704 

(4W) 835:5011 

ENDORSER: Louis Dugas, Jr. 


Vernon Harrkon 

P.O. Box 869 

Bay City. Texas 77414 

(404) 244-5877 

ENDORSER: Kent T. Mayfield 

MEMBERSHIP DAll?: June 24, 1987 

Nancy 1 Hart 

P.O. Box 5615 


(915) 685-4666 

ENDORSER: Jeffrev Hinklev 

MEMBERSHIP DA~: June 15, 1987 

David K. Haynes 

555 Republic Dr., Ste. 119 

Plann, Texas 75074 

(214) 8814579 

ENDORSER: George Roland 


Alfred Eugene Hernandee 

13830 Cane Dr. 

San Antomo, Texas 78233 

(512) 225-0882 

ENDORSER: Mark Stevens 

MEMBERSHIP DAlF July 28, 1987 

Odis R. Rill 

P.O. Bm 3W9 

Longview, Texas 75606 

(214) 758-3009 

ENDORSER: Glcnn A. Perry 


Warren Hobson, b. 

P.O. Box 941 

Fulton, Texas 78358 

15121 729-7603 

ENDORSER: Scrappy Holrnes 

MEMBERSHIP DATE: Jmne 16. 1987 

Dan Holliield 

P.O. Box 9022 

FOR Wmh, Texas 76107 

(817) 332-3179 

ENDORSER: Pete Gilfeathet 

MEMBERSHIP DAD?: April 8, 1987 

MEMBERSHIP DATE; August 

Bsrrie Lynn Howard 

IWO N. Walnut Creek Dr., #D 

Mansfield, Texas 76063 

'(817) 477-4411 

ENDORSER: Jeff Keamey 

MEMBERYHlP DATE: June 16, 1987

Robert Ieenhauer-Rsmirer 

708 Colorado, Ste. 907 


(512) 477-7991 


MEMBERSHIP DATE. August 11, 1987 

Jim W. James 

Box 1146 

Bryan, Texas 77806 

(409) 823-1012 

ENDORSER: John T. Ouinn 

MEMBERSHIP DATEr iune 2, 1987 

Karen L. Je-gs 

P.O. Box 10171 

Amarillo, Texas 79116 

(806) 379-7358 



Suzie Johnson 

P.O. Box 423 

Keller, Texas 76248 

(817) 379-6415 

ENDORSER: Jeff Kearney 


Charles P. Jones 

545 Adams. #2 

San ~ntonio, Texas 78210 

(512) 333-90 


MEMBERSHIP DATE: luly 14, 1987 

Tom R. King 

U33 Briercraft Office Park 


(806) 741-0529 

ENDORSER: Clifford W. Brown 

MEMBERSHIP DATE: July 6. 1987 

Tina M. Koemel 

P.O. Box 1672 


(817) 754-7317 

ENDORSER: Lynn W. Malone 


Robert C. Koonce 

2319 Avenue G., Suite 6 

Bay City, Texas 77414 

(409) 245-4496 

ENDORSER: Lawrence P. Gwin, Jr. 


Howard B. Law 

1015 Elm St., Ste. 2 0 


(214) 742-2800 



E. Matlhew Leeper, Jr. 

4412 Caroline 


(713) 520-5022 

ENDORSER: Daniel A. Sanjenis 

MEMBERSHIP DATE: August 4, 

Debra Lerner 

714 Jackson, suite 263 


(214) 748-9610 



David B. Lewis 

714 Jackson St., Ste. 900 


(214)'651-1121 

ENDORSER: Ron Goransan 


Jack Clinton Looney 

Metro Tower 

I220 Broadway, Ste. 1301 


(806) 763-6002 



Joe Lui Luna 

P.O. Box 603 

Crystal City, Texas 78839 

(517) 174-?459 

\---, -. - ---- 

ENDORSER: Roberto Serna 

MEMBERSHIP DATEr May 4, 1987 

Dandd J. Mrb 

800 Milam Bldg. 

San Antanlo, Texas 78205 

(512) 2211-9144 

ENDORSER: Charles D. But@ 


John P. Maner I P.O. - . . Rnr -. . 1437 - . . 


(806) 765-7477 


MEMBERSHIP DATE: luly 8, 1987 

David Martiia 

806 Main St. 

tubbock, Texas 79401 

(806) 7634568 



Juan Jose Martinez 

P.Q. Box 8544 

Brownsville, Texas 78520 

(512) 544-6170 

ENDORSER; E. Dale Robenson 


knowledge pays 

the best interest!' 

Your Government has published 

superintendentof ~ocuments 

Washington, D.C. 20402 p 


Dale A. McCleary 

310 N. Mesa, 3rd Flw~ 

El Paso, Texas 79901 

(915) 533-2777 

ENDORSER: Weldon Holcomb 


Denb E. McGuinness 

1204 Avenue I, Ste. 202 


(806) 763-8846 

ENDORSER: Mark C. Hall 

MEMBERSHIP DATE; August 29, 1987 

Andrew T. McKinney, nI 

3WO Post Oak Blvd., Ste. 1400 


(713) 9634677 

ENDORSER: C. Anthony Pr~loux, Jr. 

MEMBERSHIPDATE: August 11, 1987 

Francisco G. Medina 

29W Smith. Suite 220 

(713) 527-9610 

ENDORSER: Edward A. Mallett 


Michael L. Meripolski 

309 N. Galloway 

Mesquite, Texas 75149 

(214) 285-8848 

ENDORSER: Prank Iaccksan 

MEMBERSHIP DATE: June 25. I987 

Michael E. Mery 

23W Tower Life Bldg. 

San Antonto, Teas 78205 

(512) 223-3037 


MEMBERSHIP DATE. June 8. 1987 

J. P. "Fritz" Miller 

3875 Ogden 

Beaumont. Texas 77705 

(409) 835-1186 

ENDORSER: Weldon Holconlb 


Thomas W. Mills, Jr. 

l5W RepublicBank Tower 


(214) 922-9393 

ENDORSER: Arch C. McColl 111 

MEMBERSHIP DAW August 6. I987 

Boyd Calvin Mooney 

2008 Glenhaven Dr. 

Fort Worth, Texas 761 17 

(817) 354-9500 

ENDORSER: I. Kent McAfee 


Pamela J. Mwre 

500 Main St.. Ste. 201 

. - . , - - - - - - 

ENDORSER: Larry M. Moore 



Roland B. Mome, III 

-

Ed- M. Sigel 

304 S. Record 


(214) 698-1841 

ENDORSER: Jeffrey Hinklev 

MEMBERSHIP DATE: ~u~ist 4, 1987 

John D. Sloan, Jr. 

P.O. Box 3009 


(214) 758-3009 

ENDORSER: Glenn A. Perry 


Jo Ann Weia SchaITer 

3000 Weslayan, Ste. 375 


(713) 621-2927 

ENDORSER: Kent A. Schaffer 


Gregory P. Seale 

11230 We31 Avenue, #I205 


(512) 349-9314 

ENDORSER: 1. Mack Ausburn 


George McCall Seerest, Jr. 

3401 Louisiana, Ste. 270 


(713) 529-1555 

ENDORSER: David L. Botsford 


James P. Sieloff 

6243 IH 10 West, Ste. 980 


(512) 734-8151 

ENDORSER: Charles D. Bulls 


Jeffrey B. Smilh 

2215 Avenue L 

Galveston, Texas 77550 

7h?n7rm 

Paul J. Smith 

8003 Bellaire, #I040 

Houalon, Texas 77036 

(713) 271-2413 



Miguel Solis 

813 Mynle 

El Paso, Texas 79901 

(915) 533-2494 

ENDORSER: Roben R. Harris 


Denise B. Staudacher 

Public Defender's Office 

Caurthausc, Room 207 

Wichira Falls, Tcxas 76301 

(8171 766-8199 

ENDORSER: Charlotte Harris 


~aui G. Stuckle 

112 S. Kenhcky 

McKinney, Texas 75069 

(214) 542-8513 

ENDORSER: Georee Roland 

MEMBERSHIP D A ~ August : 18, 1987 

John F. Tabor 

1601 Broadway 

Lubback, Texas 79401 

(806) 763-9493 

ENDORSER: Cliffoid W. Brown 


Neal Stark Thomas 

P.O. Box 4508 

9210 Diana Drive 

Ei Pam, Texas 79914 

(915) 751-1112 



Britt Thurman 

P.O. Box I658 

Abilene, Texas 796M 

(915) 672-3277 

ENDORSER: Stan Brown 

MEMBERSHIP DATE: April LO, 1987 

Nancy M. Thurshy 

714 Jackson St., Ste. 200 


(214) 939-3008 



Pete Tijerina 

314 E. Connncrce, Ste. 500 

San Antonio, Tcxas 78205 

(512) 227-2923 


MEMBERSHIP DATE June 29, 1987 

Andy Wade Tlndel 

P.O. Box 3009 


(214) 758-3009 

ENDORSER: Glenn A. Pcrry 


Wayne Toliver 

P . 0 . Rni -. . R17 . - . 

Gilmer, Texas 75644 

(214) 843-2513 

ENDORSER: Harry R. Heard 


Mark S. ToUe 

4923 West Lovers Lane 


(214) 358-3935 

ENDORSER: Keith E. Jagmin 

MEMBERSHIP DATE: August 4. 1987 

W. W. Torrey 

201 Normandy 


(512) 224-9144 

EIVDORSER: Charles D. Butts 


Bill Trantham 

82M Elmbrook, #i13 


(214) 631-2937 

ENDORSER: 


John C. Van Meter 

1003 N. Mallard Street 

Palesline, Texas 75801 

(214) 723-2491 

ENDORSER: John B. McDonald 


Lester Van Slyke, Jr. 

500 Manon 

Richmond, Tcxas 77469 

(713) 342-6148 



Chris Varner 

5303 50th St., Ste. 404 


(806) 763-9301 

ENDORSER: Bill Wisehkaemper 


Not Anymorel 

Texas Register-& Bi6k on state government 


Ray Velarde 

10i3 Montana 

El Pasa, Texas 79592 

(915) 542-1877 



Edmund A. Weinheimer, Jr. 

P.O. Box 212 

El Camp, Texas 77437 

(409) 543-2761 

ENDORSER: Alexander Hamilton 

MEMBERSHIP DAm: June 15, 1987 

Carol Herring Weir 

846 - rulehrn -. -- #lnt 

snn . . Ant'," . .- - .. 

(512) 736.1670 

ENDORSER! Charles D. Butts 

MEMBERSHlP DATE: July 2,1987 

The lnvestiaatar 

cominuedfrom poge 41 

tiated the fact that the girl had been re- 

ported as a runaway five times prior to the 

date in question and that he had personally 

transported the girl to the Children's Shel- 

ter on three occasions. He further testified 

to the fact that on one such occasion the 

Complainant had, in his presence, threat- 

ened to kill the mother and to "get Her." 

Last, but not least, the Defendant's ex- 

wife, and another girl friend testified that 

he had lived with the girl's mother for 

approximately four years but during that 

time he had moved out and lived with the 

other girl friend for aperiod of almost six 

months. 

The Federal Corner 

coninuedfro,n page 42 

On September 5, 1986, this same panel 

substituted an opinion found at 800 F.2d 

452 (5th Cir., 1986) for its earlier opinion. 

Once again, it ended with the same strong 

conclusion. 

In its en banc opinion of August 21, 

1987, the Court reaches a totally different 

conclusion and affis thejudgment of the 

trial court. In its opinion, it is obvious that 

the Court is influenced by the rejection of 

the Williamso~z rule by the Supreme Court 

and the courts of four other circuits. 

The Court draws a parallel between the 

paid informer and the witness who is testifyimg 

under a plea bargain agreement that 

prwnises him a reduced sentence if he 


Warren Weir 

115 Cameron 


(512) 223-2685 


MEMBERSHfP DATE: June 15, 1987 

Ronald D. Wells 

2308 Table Rock 

Arliogton, Texas 76006 

(817) 2654114 



Marvin Willlanls, h. 

806 Main 

Lubback, Texas 79401 

Cassandra Evana Woods 

4415 66th St. 


(806) 795-2929 

ENDORSER: Bill Wisehkarmper 

MEMBERSHIP DATE: Jane 8, 1987 

Damon Young 

P.O. Box 1897 

Teratkana, Texas 75504 

(501) 74&3206 

ENDORSER: Jun Hooper 

MEMBERSHIP DATE: April 2. 1987 

Karen ZeUers 

3WO Past Oak Blvd., Sk. I400 

Houston, Terns 77056 

(713) 871-8500 



time he had moved out and lived with the confused about a lot of things and maybe 

other girl friend for aperiod of almost six 

months. 

During the close, the Defense Counsel 

brought out the point that south Dallas 

teenagers do not describe a rape in the ter- 

minology the Complainant used and that 

"if someone else put those words in her 

mouth, what did they put in her mind?" 

He also showed the Case Worker had not 

done any real investigation into the ver- 

acity of the Complainant's scenario but 

merely accepted it as fact. 

Again, the tenor of the presentation was 

such that it did not elicit sympathy for the 

Complainant. 

The State's close was predicated on the 

fact that "well yes the girl was obviously 

cooperates. The Court seems to conclude 

that there is a greater motivation to lie on 

the part of the accomplice hoping for a 

reduced sentence than there is for the paid 

witness. 

The Court is also influenced by the 

policy aspects of the Federal Rules of 

Evidence: Rule 402 makes "all relevant 

evidence admissible," and Rule 601 

recognizes that "every person is compe- 

tent to be a witness." With all due respect 

to Judge Davis, who authored the opinion, 

it appears that the Court determined what 

conclusion it desired and then searched for 

some logic to support this conclusion. 

The only solace for the lawyer who rep- 

resents defendants in criminal cases is the 

affirmative burden which the Court now 

places on the Government to "make a 

complete and timely disclosure to the ac- 

the Case Worker's assump~ons werenot 

accurate, but children don't lie about sex- 

ual abuse!" 

This case was typical of several of the 

aspects that Dr. Coleman had brought up. 

Fortunately, with believable witnesses for 

the defense (again, not pillars of the com- 

munity, but believable), and a beautiful 

presentation by the Defense Counsel, the 

Jury took less than two hours to fmd the 

Defendant "Not Guilty!" 

If you have one of these cases, I strongly 

recommend reading Dr. Coleman's article 

that appeared in "California Lawyer," 

July 1986 and another one in ''Forum 

Magazine," January-February 1986. Then 

hire a GOOD INVESTIGATOR. 

cused of the fee arrangement it has made 

with the informer in accordance with 

Brady v. Marqland, 373 US 83, 83 S.Ct. 

1194, 10 L.Ed.2d 215 (1963)." 

It is refreshing to note that Judge Gold- 

berg is consistent. He begins his dissent 

wifh these words: "Adhermg to the views 

expressed in the panel opinion, I respect- 

fully dissent. The truth has no market 

place." (Emphasis added) 

[Having just concluded the representa- 

tion of an indigent defendant in a multi- 

defendant, multi-count drug conspiracy 

case, I am curious as to the constitutional 

issue which Cervantes-Pacheco raises: Is 

an indigent defendant entitled to funds 

from the Treasury ofthe United States with 

wpch to pay a contingent fee to his wit- 

nesses in order that he may not be deprived 

of a fair trial?] W

Many of us can still remember the old 

days when before someone could be sen- 

tenced on a guilty plea, he must be first 

asked by the wise trial judge whether his 

plea was induced by any hope of pardon 

or parole. That requirement got into our 

law because somebody way hack then de- 

cided that a voluntary plea could not be 

based on a condition or promise that some- 

thing good would happen down the line if 

the defendant admitted guilt to a crime. 

And so, that admonishment with its 

"magic words" became a very important 

part of our law. 

But yet another and in some ways more 

important issue remained in each case; Did 

the Defendant really understand what he 

was being told by the judge. So many times 

a real grasp of the meaning of the admon- 

ishment was not gained by the accused. 

One judge told me once that upon giving 

that admonishment, the Defendant said he 

didn't understand the big words. So the 

judge rephrased the warning something 

along the lines of "did anyone tell you the 

Governor would pardon yon if you plead 

guilty." The Defendant answered that he 

had received no call at all from the Gover- 

nor but that he had left home early that 

morning and perhaps the Governor had 

called while he was on his way to the 

courthous@. 

And of &use the wording of that ad- 

monishment was somewhat misleading. 

Everyone had a hope of pardon and parole, 

and everyone entered a plea of guilty hold- 

ing that hope firmly in hand. The major 

inquiry sought by the question was whether 

the defendant had been promised post con- 

viction relief, but in the courtroom setting, 

few actually realized the point of the 

question. 

In more recent time, judges were re- 

quired to admonish that if the defendant 

warnot a citizen of the United States, his 

plea could result in deportation, exclusion 

from later admission to the country, or 

A View From the Bench 

Guilty Plea Admonishments 

by Judge Larry Gist 

denial of naturalization under federal law. 

That requirement certainly got placed in 

our code because some unsuspecting de- 

fendant entered a guilty plea and was 

promptly deported. But the law required 

the admonition to be given to citrzens and 

non-citizens alike so we could make sure 

that nobody got deported becauseof a guil- 

ty plea even if the vast majority of those 

required to hear this admonishment were 

citizens. I've had several defendants tell 

me during guilty plea proceedings that they 

werecitizens and please don't deport them. 

I guess in some ways perhaps being ban- 

ished to some foreign country could he a 

lot worse than a trip to TDC. 

The point of our law of admonitions is 

clearly to make sure that a defendant goes 

forward with a plea only with his eyes 

open. But somehow we have selectively 

chosen in the Iegislafureonly afew things 

that need to be mention4 by the trial 

judge: The penalty range; Acceptance or 

Rejection of a plea bargain; Permission to 

Appeal in some circumstances; and the 

citizenship warning. Beyond that, nothing 

is legally required. 

In fact in the old days, the exact magic 

words had to he said-understood or not- 

or the plea would be set aside. Detecting 

some possible abuse, the legislature then 

provided that "substantial compliance" 

with the required admonishments would be 

legally sufficient. 

A judge has a duty to determine thaf each 

defendant is entering a guilty plea freely 

and voluntarily and only after fully under- 

standing all of the warnings required by 

our law. That is sometimes a very difficult 

thing to detect. Defendants almost always 

give the correct Legal answers. Most good 

lawyers tell the defendant in advance how 

the plea process will take place and what 

legally correct answers must be given to 

validate the plea. But many judges wonder 

if the admonishments given from the bench 

really sink in. Many defendants in the 

courfroom environment are confused, 

scared, don't care, or appear totally indif- 

ferent. And good trial judges just can't he 

too careful in making sure that all of the 

important things areunderstood. That at- 

tempt is often made difficult in busy conrt- 

rooms by the press of other business and 

the pressure to get this case out ofthe way 

so that the next one can be addressed. 

That's where good and competent rep- 

resentation is so critical. There is nothing 

wrong in mentioning to the trial judge that 

the defendant is having difficulty under- 

standing some or all of the proceeding. 

Sometimes, a dialogue between the attor- 

ney, the judge and the defendant is neces- 

sary to get the message across. 

But then along comes our latest amend- 

ment to Art. 26.13. Section (d) has just 

been added and it provides: The Court 

may make the admonitions required by 

this art&le either orally or in wrifing. If 

the Court makes the admonitions in writ- 

ing, it must receive a statement sigried by 

the defendant and the defendant's at- 

torney that he understands the admoni- 


Sometimes keeping this column going is 

slow business. It is supposed to be news, 

gossip, commentary and kudos for d m - 

ing members and others from in and 

around Texas, but we need to bear from 

you in order to carry out those goals. Un- 

doubtedly, you are busy, but it won't take 

much time to let us know if you, or a col- 

league, do well in a trial or other legal pro- 

ceeding. Just call the home offffie, and in 

the next Voice you will see yours, or your 

colleague's,name with a brief summary 

of what it was you did to warrant a men- 

tion in this space. On the other hand, if you 

feel the need to comment about some 

aspect of criminal or constitutional law, or 

TCDLAICDLP or whatever, send your 

comment to the Editor, In and Around 

Texas, home office address, and we'll 

print it (reserving the right to edit of 

course). If you move your office; change 

firms or hire a new associate, get married, 

divorced or have a kid, we'llprint that, and 

it won't cost yon anything but the time it 

takes to give us the information. Look that 

up in your Martindale-Hubbell. Write if 

you get work. 

Right Sh@ As this is written CBS Radio 

News reported that 53 Senators have pub- 

licly announced that they will oppose the 

Bork nomination to the US. Supreme 

Court. So by the time you read this, it is 

very. likely that another Supreme Court 

nominee will be before the Senate Judici- 

ary Committee or maybe even already con- 

fmed, if the Senate is not still debating 

the Bork nonquestion. One hopes the next 

nominee is a less divisive candidate than 

Judge Bork turned out to be. 

Charles Rittenberry, Amarillo sole 

practitioner, former member of the 

TCDLA Board of Directors and charter 

member, received a Governor's Office ap- 

pointment to the Texas State Board of 

Pharmacy for a six year term. Rittenberry 

says he will commute to Austin for the 

Pharmacy Board meetings. 

TCDLA past president and honorary 

member District Judge Bob Jones of 

Austin was cited as the "Best Criminal 

Court Judge" in Travis County by the 

Austin Light, a local weekly newspaper, 

2he Austin Light, Vol. VIU No. 28, Sep. 


and Around Texas 

by John Boston 

30-Oct. 6,1987. Quoting briefly from the 

article, "Bob Jones looks and acts like he 

belongs on the bench. Part of it is his 

Marine bearing. Part of it is his successful 

career as a criminal defense attorney." 

Described by lawyers as conscientious, 

knowledgeable of the law and having a 

neutral, no nonsense approach, Jones was 

complimented by lawyers ". . . for re- 

membering how hard it is to be in three 

courts at once and what it's like when a 

client fails to make a court appearance." 

The article quoted one Travis County law- 

yer, " 'He bas the guts to rule in favor of 

a defendant. . . . You know where you 

standwitb hi. Heis firm but without any 

mkanness at all.' '' Looks like Bob Jones 

is continuing from the bench what he 

started as a Marine, a criminal defense 

lawyer and member of TCDLA-doing a 

job well and with grace. 

Houston lawyer, Karen Zellars, who 

recently became a member of TCDLA 

after a stint in the Harris County District 

Attorney's Office, won her first jury trial 

as defense counsel last June in a Kentucky 

murder trial in which the defendant shot 

her former husband. Zellars, who left the 

District Attorney's office to take the case, 

said her client was battered by the former 

husband both during and after their mar- 

riage ended, and that her client's case was 

typical among the over 700 battered wife 

cases she had seen while heading the Fam- 

ily Criminal Law Division in Harris Coun- 

ty. Her eo-counsel in the case was attorney 

Robert Sanders of Covington, Kentucky. 

Zellars recently spoke on the subject at 

TCDLA's Houston Homicide Seminar. 

One of many helpful trial tips Zellars 

recommended was the use of. Denver 

psychologist, Dr. Lenore Walker, an 

expert on family violence and battered 

women syndrome. 

Mike DeGeurin, and cc~counsel, Paul 

Nugent, both of Houston, were able to obtaka 

recommendation for a new triul from 

Senior Judee Perrv Picket of Midland in 

a capital mirder appeal hearing for Clarence 

Brandley. Brandley has been on 

death row since 1981 following a Montgomery 

County conviction in which be 

allegedly raped and choked a 16 year-old 

Bellville high school student. Brandley has 

maintained his innocence since his arrest. 

Election Day: On November 3 Texans 

will have had the opportunity to vote for 

or against the State's right to appeal in- 

terlocutory issues in criminal cases 

(Amendment 14). The guess here is that 

it passed. But look at tbe bright side, 

maybe it will generate additional fees for 

criminal defense lawyers and maybe a 

judge who knows that an appeals court will 

be grading his paper will rule in favor of 

suppressing illegally seized evidence. 

Maybe President Reagan will rehire the ait 

traffic controllers. 

Bill LaRowe, director ofthe State Bar's 

Center for Correctional Services, sent us 

a clipping from the Houston Chronicle, 

September 20, 1987, in which John B. 

Holmes, Jr., Harris County district at- 

torney, urges voting for the amendment 

granting the state right to appeal inter- 

Announcement 

dvanced Criminal Law Semina 

StatdFederal Constitutional 1ssc 

'iew From the Bench; Two Jud 

mine the Role of the Defense

lucutory issues. Although by tfm time this CLBI The Criminal Defense Lawyera; 

is priubl the &sue will be moat. Holmes Pmjeot Advanoed Jury Selection Seminar 

makes a cmple of stawnwts that ought to has been moved back to January 14, IS and 

be mpeated, just to tohow froin where the 16 Atam the earIier date of Deeaber 10, 

honorable district attorney is coming. 11 and 12. This mume will involve exten- 

Holmes writas tha€ the ban on appeals by sive and intensive moot court voir dire 

the state permits issues that '\ . . have pmtice by the participants. Austin lawyer, 

been wrongly decided by trial courts BIU White, White aud Allison, P.C., hngagainst 

the statk to stwdforever as the law time course coordinator far CDLP's fiveof 

the land, whether these rulings are day Criminal Trial Advocacy Institute is 

inadvertent, in good faith, ar mallcbus. phing the jury wlechn pmgcam with 

. . ."; then he sayslater inliisdsgalemic that assistance from the staff, TCDLA CLE 

' ' . . . the lackof an equal right to judicial committee members and especially from 

review (for the state) creates ifieomMTsf8nf jury selmtfon experts CzttXy Bennett and 

irtterprefatiohs and applications of the RobeEt HirsChhorn of Gatwmn. The 

same law in di$r&tt cawt~aoms. . . ." cowme will be held in Austin with enroll- 

(Emphasis added.) Iuconsisteii!? Who? ment ImM to forty participants. Watch 

The mum? The defense harl Mr. your pail for thecourse mouncement in 

Holmes? 

late Novemberlearly De~ember or write 

- 

A View from the Bench 

49 

co~Wunifrom ~ngo 

tirms and& aware ope eonseqmndes sf 

his plea. If the defa&a& is unable or 

refurea to sign tk @amtent, the Cautt 

skdl m& ihe admmifiona urn@. 

$0 now, a new dimension has been 

placed in our proceedings. Lotsof people 

are delighted with this addition to our admonition 

mute, Lawyers have a lot to do, 

and waiting dlmorning listening to several 

admonitions in other cases can be a waste 

of time, Now. if a Court elects to do the 

warnings in wdting, theproma can move 

much more quickly. 

Judges &auld continue to remain 

cautious, hawever, ao thpt even with written 

admonishments, the plea will not be 

allowed to proceed ualws the judge is 

absolutely satisfied the deQetvdant fully 

comprehends the consequences. That's 

alse important m eveqbdy else; no prow 

ecutor wants to see a plea set dde at a 

habeas corpus proding because of a kek 

ofcomprehension; and no defense wumel 

wants to be found incompetent for having 

failed to make sure his cknt had a good 

grasp of tbs law. Defense counsel can be 

a very weloome addition to the trial judge 

in making sure that every defendant knows 

exactly what the 18% requires. 

There are, of coum, huudre* of other 

Eonsequences that attend to a witty plea 

that the judge is not required to mention, 

and in fact failure to do so seldom maks 

the plea invalid. But those consequences 

the home office for details. This course 

will be a real challenge andgreat learning 

experience for lavyec6xady for adraneed 

CLE, If the demand warrants, the jury 

selwtion seminar wil benrme a regular 

feature of TCDLAlCDLP. 

CDLP's Federal Criminal Law Seminar, 

originally schedu1ed for January 14 and 15, 

will be held inDalla on December 10 and 

11. This will be a skills course devoted ex- 

clusively to federal @ice. If you din% 

receive a course announoement, call or 

write the home office, (512) 478-7994. 

Limited schoiarships are available. 

Remember, every member get a ne3v 

mqmber, do it soonand ofteu. Thank you 

for your support. 

are often of great importame to the deh- of the law cau be- met. Our job as judges 

dant,and so mII defehse counsel should is to see the very best we can that juslice 

be alwayscautims to imure that the defen- aeeurs. Good lawyers can be of enormous 

dant's quesiuns are sorwtly answed. vdue and help in this very diffialt job. 

In this way, fhe letter and the real spirit 

November I96n I VOICEfor the Dgfense 51

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TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 

600 West 13th Street 

Austin, TX 78701 

(RETURN POSTAGE GUARANTEED) 

I 

TEXAS CRIMINAL DEFENSE LAWYERS ; 

I 

I ASSOCIATION I 

I MEMBERSHIP APPLICATION I 

I I 

I (Please print or type) I 

I I 

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: NEW MEMBER APPLICATION I 

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I RENEWAL APPLICATION I 

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1 NAME I 

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: 

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: MAILING ADDRESS 

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I cm 

S T A T E ZIP I 

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1 BUSINESS TELEPHONE (-) I 

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: TELECOMhIUNlCATlONS ACCESSIBILITY: I 

I Y E S N O - I 

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TELECOMMUNICATlONSPROTOCOL~NIA~ : 

I I 

I BAR CARD NUMBER I 

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I NAME I 

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I (As recorded on State Bar Card) I 

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: TITLE FOR SALUTATION: 

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! BAR DATE: Month Year ! 

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: PROFESSIONAL ORGANIZATIONS: (Current) 

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State 

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: National 

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AREAS OF SPECIAL INTEREST IN CRlMiNAL 

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LAW (Cerlification not required) ! 

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CERTIFIED CRIMINAL SPECIALIST: I 

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I Y E S NO- I 

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RESIDENCE TELEPHONE (-) I 

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bar association, or are you the subject of disciplinary I 

I action now pending? : 

I i 

I Date I 

I (Signature of Applicant) I 

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I ! 

i ENDORSEMENT I 

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: I, a member of TCDLA, believe this applicant to be a I 

I person of professional competency, intcyity, and ; 

: good nloral character. The applicant is actively en- I 

1 gaged in the defense of criminal cases. I 

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1 Date I 

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Some of the best legal minds 

. , .in this state already belong to the Texas Criminal Defense 

Lawyers Association. We believe we have now the best Crim- . 

inal Defense Bar in the United States. We maintain that level 

of excellence by continuously seeking out new minds, new 

energies. Therefore we want YOU. . .if your legal and personal 

philosophies are compatible with our purposesandobjecfives: 

To provide an appropriate state organization representing those 

lawyers who are actively engaged in the defense of criminal cases. 

r To protect and insure by role of law those individual rightsguaranteed 

by the Texas and Federal Constitutions in criminal cases. 

To resist proposed legislation or rules which would curtail such rights 

and to promote sound alternatives. 

To promote educational activities to improve the skills and knowledge 

of lawyers engaged in the defense of criminal cases. 

To improve thejudicial system and to urge theselectionandappointment 

to the b$nch of well-qualified and experieWlawyers. 

To improve' the correctional system and to seek more effecti 

rehabilitation opportunities for those convicted of crimes. 

To promote constant improvement in the administration of erimin 

justice. 

ADVANTAGES FOR TCDLA MEMBERS 

The monlhly Voice for the Defease magazine. 

The "Significant Decisions Report" of important cases dedd by theaxas Court of 

Cnminal Appeals and the Federal Coum. 

TCDLA Membecship Directory-refcrrsis to and from Criminal Dbfense Lawyen in 

over 1W Texas cities. 

Outstanding educatinnal program-featuring recogtuaed experts on practical aspects 

ofdefensecam. TCDLAand the StateBar annualiypmxntmany seminars andcourses 

in all pam of the state. 

Availability of Lawyers Assistance Camminee, a ready sourceof mfom~alion and as sislance to members, and the Amicus Curiae Committee. 

The Attorney General's Cnme Prevention Newsletter. Summaries of latest Texas Court 

of Criminal Appeals cases available to private practitioners only through TCDLA's 

group subscription, included in dues. 

Organizational voice through which criminal defense lawyers can formulate and express 

theirposiiion on legislation, &UII reform, imporcant defensecares fh~ougb Awcur 

Curiae activity. 

Dwmunts and free offerings for publications of interest to criminal defense lawyers 

Messenger service tn the Capital area. 

ELIGIBILITY AND DUES 

Effective: April 19. 1986 

Volunlary Sustaining Dues (VS) ................ $300.00 

Sustaining Dues (SUS) ....................... 2W.00 

Dues far members in the firm of 

a sustaining member (SMF) ................. 50.W 

Members admitted to practice: (MEM) 

2 years or less .......................... 50.00 

2-5 years.. ............................. 100.00 

5 or more years.. ....................... 150.00 

Affiliate: Persons ~ ~ in careers which contribute to defense of 

Crim nai cases, e 9 , la* profersurs, are e .g ble far all - 

1t31e membemhp dpon approval of the apptlcalion and 

receipt of the annual dues. 

Affiliate Dues (AFF) ...................... 50.00 

Students: Those regularly enrolled in a law school in 

I 

I Mail to: 

I Texas Criminal Defense Lawyers Association 

I 

I 600 West 13th Street 

I Austin, Texas 78701 

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I 

Texas are eligible for student membership. 

Student Dues (SDM). ..................... 20.00 

TEXAS 

CRIMINAL 

(512)478-2514 

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LAWYERS 

AsSo(3IArn

Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

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