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

More documents

Recommendations

Info

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 increase 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., keeping 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 servant. 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 officer 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 -- -- -- --
Page 1 and 2: ' Dane Whitworth. David Sheppard, R
Page 3 and 4: President's Report Should We or Sho
Page 5: David A. Sheppard obtained his J.D.
Page 9 and 10: H.B. 2575 writinz. If rhe murf d c
Page 11 and 12: taken outsidethemuttroom and he rec
Page 13 and 14: adopted by the health care agency o
Page 15 and 16: The DWI Roadblock Dilemma An Explic
Page 17 and 18: cause because the DWI iquad was aga
Page 19 and 20: that warrantless arrests in this St
Page 21 and 22: solely from thelips of the officers
Page 23 and 24: ests are being made. Potential viol
Page 25 and 26: SHOULD CONSIDER FACTORS SUCH AS BOT
Page 27 and 28: COURT OF CRIMNAL A P P E A L S Alex
Page 29 and 30: ARREST -- WARRANTLESS -- PROBABLE C
Page 31 and 32: 2. Would D confined without bail be
Page 33 and 34: Melvin Edward BUTLER, No. 1063-83 -
Page 35 and 36: Preparing the Record co~rlinuedfmm
Page 37 and 38: . . I. I. After submission, if it a
Page 39 and 40: The Sex Offense Laws The Texas Pena
Page 41 and 42: it was noibeing offered to prove th
Page 43 and 44: difficulty of obtaining a convictio
Page 45 and 46: En Garde: The State's Rebuttal "Onc
Page 47 and 48: Another possible remedy may he to p
Page 50 and 51: On August 21, 1987, the Court of Ap
Page 52 and 53: Juan C. Duran 3103 Bee Cave Rd., a2
Page 54 and 55: Dale A. McCleary 310 N. Mesa, 3rd F
Page 56 and 57:
Ray Velarde 10i3 Montana El Pasa, T
Page 58 and 59:
Sometimes keeping this column going
Page 60:
I ! TEXAS CRIMINAL DEFENSE LAWYERS
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?