3 - Voice For The Defense Online

JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION
OFFICERS
President: Thomas Gilbert Sharpe, Jr.
Brownsville
President-Elect: Clifton L. Holmes
Longview
First Vice President: Louis Dugas, Jr.
Orange
Second Vice President: Knox Jones
McAllen
Secretary-Treasurer: Charles D. Butts
San Antonio
Asst Secretary-Treasurer: Edward A. Mallett
Houston
DIRECTORS
Richard Alan Anderson, Dallas
Cecil W. Bain, San Antonio
David R. Bires, Houston
J.A. "Jim" Bobo, Odessa
John C. Boston, Austin
Mike Brown, Lubbock
Gene W. Caldwell, Tyler
J.A. "Tony" Canales, Corpus Christi
Men Cazier, San Antonio
Joseph A. Conoors 111, McAUen
.~ Gene de Bullet, Jr., Fort Worth
~
M.P. "Rusty" Duncan 111, Denton
Bob Estrada, Wichita Falls
Tim Evans, Fort Worth
F.R. "Buck" Files, Jr., Tyler
Carolyn Clause Garcia, Houston
Michael P. Gibson, Dallas
Gerald H. Goldstein, San Antonio
Ronald L. Goranson, Dallas
Grant U. Hardeway, Sr., Houston
Merrilee L. Harmon, Waco
Richard E. Harrison, D&s
Jan E. Hemphill, Dallas
James H. Kreimeyer, Beltan
JackPaul Leon, San Antonio
Arch C. McColl11I. Dallas
John J.C. O'Shea, Lubbock
C.W. "Robin" Pearcy, San Marcos
Jack J. Rawitscher, Houston
Eduardo Roberto Roddguez, Brownsv
Larq Sauer, Houston
George Scharrnen, San Antonio
David Spencer, Austin
Richard Thornton, Galvestan
Fred L. Tinsley, Jr., Dallas
Robert Gregory Turner, Houston
ASSOCIATE DIRECTORS
Stan Brown, Abilene
Buddy M. Dicken, Sherman
Bill Habern, Riverside
Jeremiah Handy, San Antonio
Harry R. Heard, Longview
Jeffrey Hinkley, Midland
Frank Jackson, Dallas
Sylvia Ann Robertson, Houston
Fred Rodriguez, San Antonio
Sheldon Weisfeld, Brownsville
Dain P. Whitworth, Austin
Bill Wischkaemper, Lubbock
PAST PRESIDENTS
FrankMaloney, Austin
1971-1972
C. Anthony Friloux, Jr., Houston
1972-1973
Phil Burleson, Dallas
1973-1974
George E. Gilkerson, Lubbock
1974-1975
C. David Evans, San Antonio
1975-1976
Weldon Holcomb, Tyler
1976.1977
Emmett Colvin, Houston
1977-1978
George F. Luquette, Houston
1978-1979
Vincent Walker Perini, Dallas
1979-1980
Robert D. Jones, Austin
1980-1981
Charles M. McDonald, Waco
1981-1982
Clifford W. Brown, Lubbock
1982-1983
Editor: Stanley Weinberg
"Significant Decisions Repart"
Editor: Kerry P. FitrCerold
Asmciote Editors: Richord A. Anderson
David Botsford
Catherine Greene Burne
Julie Heold
Arch C McColl III
Dovid W. Coody
Membership Secretary
Nance Nelle
Law Clerk
Ron Conover
VOICE for the Defexse (ISSN 0364-2232) ii
published monthly by the Texas Criminal De
fensc Lawyers Association, 314 West lltl
Street, Suite 315, Austin, Tenas 78701. Annua
subscription rate for members of the associatior
is $10, which is included in dues. Nonmemba
subscription-$20 per year. Secondclass postagt
paid at Austin, Texas. POSTMASTER: Senr
address changes to VOICE for the Defense, 31'
West 11th Street, Austin, Texas 78701.
Afl articles and other editorial contribution!
should be addressed to the editor, Stanlel
Weinberg, 7509InwoodRoad, Sulte 300, Dallas
Texas 75209. Advertising inquiries andcontractl
send to Dick Dromgoole, Artformr Agency
P.O. Box 4574, Austin, Texas 78765, (512
451-3588.
0 1984 TEXAS CRIMINAL DEFENSE
LAWYERS ASSOCIATION
FEBRUARY 1984/VOLUME 13, NUMBER 8
REGULAR FEATURES
Editor's Corner .............. 3
President's Report ............ 4
Significant Decisions Report .... 15-34
rhoughts from Behind the Walls ... 46
ARTICLES
Materials for Certiorari and State
Habeas Corpus After Affirmance
by Joel Berger ............. 5
fury Selection-Multiple Listing-
A Constitutional Safeguard
by Stan Brown ............. 40
Determining Needs of
Female Offenders ........... 45
ARE YOU MOVING?
OR, HAVE YOU MOVED?
Please let us know as soon as you know
your new address.
Please use the form below:
Name
Old address:
New address:
Phonc Number
Note: If you have a label from you
VOICE, please send it also.

Editor's Corner
ing it enlarged so he could name up to six justice that meets the goals and purposes
new judges for each one over 75 who of our organization-which also happen
refused to retire ended without success. to be the goals and aspirations of all cit-
In the long run, however, Roosevelt izens eager to preserve the rule of law and
named nine judges. Two of them, Wiiam the realm of individual rights so long part
0. Douglas and Hugo L. Black, served of ourheritage.
STANLEY WEINBERG
into the 1970s. Here in Texas, members of TCDLA are
S. Truman, who succeeded involved, running for statewide and local
Roosevelt, had four appointmentsin eight judicial ofoffsces. "significant ~~cisi~~~,>
years, including two in his first two years. ~dit~~, K~~~~ ~ i ~ ~ of ~ all^^, ~ ~ an- a l d
Leubsdorf noted that Dwight Eisenhower
inherited a wurt with nine justices apm,ced
early for a run for the place left
open on the T~~~ court of~riminal~p.
The shape of criminal law, individual pointed by Democratic presidents. Eisenrights
and civil liberties for the rest of this bower then named Earl Warren as chief
century and possibly well into the 21st justice and he, as historians are fond
Century could well depend solely on pol- swing, became the leader of a ''liberas'
itics and the outcome of our elections in court majority.
November. The pendulum then swung back. Later
peals by the retirement of
Judge Wendell Odom, Fomer "Significant
Decisions" Editor, Marvin Teague,
is stiu on the court but not up for reelection
at this time. Former TCDLAer
Judge Chuck M'ier, of conrse, is serving
Yon do not need a set of tarot eards or Democratic presidents did not have many his term on the Court of Criminal Apa
teacun full of odd lookina leaves to say opportu"ities to shape the court. John F. ~ ~ ~ 1 s .
that wgo wmsin~ovember kill determine
the future of the United States Supreme
Court and other tribunals, especially in
Texas.
Fad-of nine United States Supreme
Court justices, five are now over 75 years
, of age. If President Reagan is re-elected in
&
Kennedy named two justices. One, Arthur
TCDLA board member and head of
Goldberg, was named ambassador to the
the Amicus committee, Roy E. Green-
United Nations by Lyndon Johnson.
wood of Austim, a former administrator
Johnsonnamed two justices. One of them,
for the Courtof Criminal Appeals, is thick
however, Abe Forta~ served only three
in the race against incumbent Judge W.C.
years. Jimmy Carter was the only elected
Davis. Also in that race is a long-time
president who served afull term and never
TCDLA member, Harry Heard.
. November, he w~ll be given a rare oppor- received the opportunity to name a justunity
to remake the Supreme Court. If tice to the United States Supreme Court. Former TCDLA director, Judge Sam
the Democrat nominee wins, the oppor- Only two of the current nine justices- Houston Clinton, n up for re-election to
tunity to shape the high court far beyond Byron White and ThurgoodMarshall-were the Court of Ctiminal Appeals and it is
the term of the presidency will be one of named by Democratic presidents. Richard not a contested race.
the most far-reaching plums of this politi- Niion had two of his nominees rjeded As of this writing, former TCDLA prescal
season.
bv the Senate but was still able to name ident. Bob Jones of Austin, is a candidate
In a rare discussion about the Supreme four justices to the court, while Eisen- for judge of the 167th District Court in
Court, Justice Harry Blackmun told a hower, Gerald Ford and Reagan have one Austin, held by Judge Tom Blackwell,
Dartmouth College aud~ence that there appointee each still serving.
who is retiring after more than 16 years
wiU be changes soon. He predicted recently There are only two justices in the old on the bench.
that in the next presidential term the "liberal" bloc left-Marshall and William In Dallas, TCDLA board member Fred
court will change considerably. "The next Brennan. The rest of the court consists Tinsley has announced as a candidate for
election will have a profound effect upon of three "solid conservatives"-Chief Jus- Criminal District Court Number Four, the
the Supreme Court of the United States." tice Warren Burger, William Rehnquist, bailiwick of Judge John Mead, who has
TCDLA members need to stop a mo- and Sandra Day O'Connor-and four announced his retirement from the bench
ment and mull that over. "swing" justices ranging ftom "moderate" after many years of service.
In a summary of Supreme Court his- to, "conservative" - Blackmun, Lewis We know there are other TCDLA memtory,
Cad P. Leubsdorf of the Dallas Powell, John Paul Stevens, and White. bers who are running or planning to run
Morning News Washington Bureau noted You figure out what happens after or getting themselves involved in local
that the opportunity to remake the court November.
races. We don't have a!.l the names as of
is a rare one. We can not escape the fact that politics this writing.
Franklin D. Roosevelt reshaped the and law make obvious bedfellows, nation- With the future of our law, our rights
court, but had to wait until his second ally, statewide and locslly. TCDLA mem- and our liberties so much at stake, can
term before having his first appointment. bers must mantain involvement politically anyone, in or out of TCDLA, afford to sit
HIS attempt to "pack" the court by hav- in order to maintain a system of law and on the sidelines?
February 1984/VOICEfor the Defense 3

President's Report
1 @e&@$g g ifmet@&@ @.rew$t
wf@@ry@g&g $$,rj&i$je.@dt six
oRi&,Wpjiaye
~ 6w d = ~:hn -is a of tha
iff~tts &PtheB mangr of you who are conrmg.
t,@ B god, of 2300
m&beip. Tbeid eats a tiviessipy to. have
increased m&bership and partiouldily
the younger members of the Bar wlro are
practicing crhdmd law.
:mon&% &tl,hm b , w
We are pceparing to go on our annual
trip to Copper MountdmUI Colorado. Thi
Sip will allow those attending to visit $evera1
of the well-known sM amas in Colorado
and we will also present some idormafive
lectures at the seminar scheduled
there.
! The next meeting of the Board of
Dimbm will be held in Austin, Texas on,
X . 3% lW. At that time the
@ ~ '.'
%l:&V,@f& W-We will be amminted
THOMAS G. SHARPE,
to riminare the, Offiqets and Directors to that each memba of the Board of
bc elected at the mud meeting on July tors and every member of this Associ
5, 1984, at the Fow Seasons Hotel. Any- who cm attend, make arrangemen
one. who ia in&~e8& in making mom- be present for tha seminar. We c
mendittiom regarding nominees should thi~ semina a major fund-raising e
eoatact Clifton L. H b > the Chairman and its support by you will directly
of the Committee. fit the Association in perfmming
On February 24,1984, the Assooiation other functions.
program is approved for CZf credit by offiee tecently I request that you
the State Bar of Texas. It will provide far while you are in bustm. We are fo
of witnesses in Federal prosecutions and their proficiency.
will allow us to examine the criteria whkh The last Directors Meeting
KSA v. Val&%. The
treat the probIems of hypnosis in State with the Lubbock Criminal De
Court and d l include impeachment and ycrs annual seminar whkh is
appellate considerations. 1 recommend for May 1 1 th and I ath.

Texas Capita 1 Cases
MATERIALS FOR CERTIORARI
AND STATE HABEAS CORPUS
AFTER AFFIRMANCE
by Joel Berger
NAACP Legal Defense & Educational Fund
(Our usual many thanks to Jeanne Kitchens and the Criminal
Defense Lauyers Project for providing these materials, culled
from the CDLP's Capital Murder Defense Course. The rnateriaIs
reflect the opinion of the United States Supreme Court up to
the Barefoot case, but not the new Fifth Circuit rules governing
federal habeas corpus and stays of execution. -Ed.)
. MOTION TO THE TEXAS COURT OF CRIMINAL APPEALS
TO STAY ISSUANCE OF THE MANDATE
This motion must be filed within 15 days of affirmance by
the Court of Criminal Appeals, whether or not rehearing is being
sought. If the motion is not filed, the mandate will issue auto-
matically and the trial court will have no choice but to set an
execution date. In most cases, the filing of this motion 1s suf-
ficient to prevent the Immediate setting of an execution date
following affirmance in the Court of Criminal Appeals.
No.
X
, APPELLANT X IN THE COURT OF
X
VS X CRIMINAL APPEALS OF
X
THE STATE OF TEXAS, X THE STATE OF TEXAS
APPELLEE X
APPELLANTS MOTION TO STAY ISSUANCE
OF MANDATE
TO THE HONORABLE JUDGES OF THE
TEXAS COURT OF CRIMINAL APPEALS:
Subject to Appellant's Motion For Leave to F~le Appellant's
Motion for Rehearing and this Honorable Court's Order thereon,
comes now, , Appellant in the above entitled and
numbered cause by and through his attorney of record,
, and moves that issuance of the mandate of
affirmance in this cause be stayed pending the filing and determination
of a timely petition for a writ of certiorari in the Supreme
Court of the United States; or, in the alternative, for a
period of thirty (30) days in which to apply to a justice of the
Supreme Court of the United States for a stay of execution
pending the filing and determination of a timely petition for a
writ of certiorari. In support of this motion, Appellant would
show the Court as follows:
I.
The Appellant was convicted of the offense of captial murder
and the trial court assessed his pumshment at death after the
jury affirmatively answered the issues submitted to them at the
punishment phase of the trial.
n.
The Appellant will diligently prepare and fde in the Supreme
Court of the United States a timely petition for a writ of certio-
rari in this cause.
111.
The jurisdiction of the Supreme Court of the United States
to review the judgment of the Texas Court of Criminal Appeals
by writ of certiorari is derived from Title 28, Section 1257 (3)
United States Code, Appellant having asserted before this Court
the deprivation of rights secured by the Constitution of the
United States.
n'.
The Appellant's application for writ of certiorari will raise
February 1984/VOICEfor the Defense 5

several substantial federal constitutional questions, including death sentence [, scheduledfor after sunrise an
the EoUowhg: , 19-,] pending a final disposition in this Court of
[BRIEFLY SUMMARlZE THE STRONGEST CONSTITU- his petition for a writ of certiorari. In support of this appka-
TIONAL ISSUES RAISED ON APPEAL] . tin, petiboner respectfully shows:
1. At a jury trial in the Judicial Dittict Court in
v, and fox County, Texas, petitioner was convictedof
Unless a stay is grated, the mandate of this Court will issue, capital murder; affirmative fiidings were returned regarding th6
an execution date will be set, and Appellant will be subject to Sped Is9ues determative of sentence in Texas capital cases;
execution without having the opportunity to present to the and a judgment was entered fixing his punishment at death.
Supreme Court of the United States the substantial constitu- 2. By opinion dated , 19-, [repartedat
tional questions set hrth above. S.W.2dandI mexed hereto as Appendix A, petitioner's
WHEREFORE, the Appellant prays the issmnce of the ma- conviction and sentence were affirmed by the Court of Crhnidate
in this cause be stayed pending the fhg and determination ml Appeals of Texas.
of timely petition for a writ of certiorari in the Supreme Court 3. Petitioner's motion for leave to ffie ea motion for reheatof
the United States, or, in the alternative, for a period of thirty ing was denied [without written order] by the Court of Crimi-
(301 days. nal Appeals of Texas on , 19-. [If there was a
Respectfully submitted, written order, attach a copy as Appendix B. If not, attach as
Appendix B acopy ofthepostcardnotifying you of denial of the
motion.]
4. On 19-, petitioner filed amotion in the
Court of Criminal Appeals requesting the court to stay issuance
of tts mandate pending f& disposition of his petitton to this
Court for a writ of certiorari. Qn .19-, the Court
of Crhiaal Appeals [denied the motion] [denied the motion,
APPLICATION TO JUSTICE WHITE FOR A and instead granted only a 30 day stay of issuance of the man-
' STAY OF PENDmG THE AND date] . A copy of the court% [order] [postcard notification to
DETERMINAT1ON OF A TIMELY counsel of this disposition] is annexed as Appandix-.
usually the court of criminal ~~~l~ deElines to stay issu- 5. Absent the granting of a stay of execution by this Court,
ance of the mandate pending the filing and determination of a petitioner be br@f the Judl~ial District
timely certio~ari petition, but does stay issuance of the mandate
Court m and for County, Texas, and an execution
for 30 days to allow time for to Justiw white for a date be set [upon e-apiration of the 30 day stay granted by
length& sttxy. If the Court of Criminal Appeals orders only a the to
30-day stay, or if it declines to order any stay at all, the next '. The Opinion the Court Of Criminal kpfials affi*iog
step to fie M3 appucation with J~~~~~~ me ils as
possible.
A.
IN TAE SUPREME COURT OF TIIE UNITED STATES
October Term, 19-
V.
THE STATE OF TEXAS,
Petitioner,
Respondent. .
APPLICATXON FOR STAY OF EXECUTION
petitioner's conviction and sentence raises federal constitutional
claims as to which review in this Court will be sought, including
[BRIEFLY SUMMARIZE THE STRONGEST CONSTITU.
TIONAL ISSUBS RAISED ON APPEAL].
7. Petitioner is presently in the custody of the Warden of
the Ellis Unit of the Texas Department of Corrections, Hunts.
ville, Texm. A stay of execution would neither prejudice the
Sfate of Texas nor interfere with petitioner's custodial status,
but is necessary to assure that petitioner isnot executed before
this Court tag hear and determine the issues to be raised in his
petition for a writ of certiorari.
WHEREFORE, petitioner respectfully requests an order staying
his axecutim pending further order of this Court.
Respectfiully submitted,
To the Honorable Byron R. White, Associate Justice of the
Supreme Court of the United States and Cirmit Jwttce for the
Fifth Circuit:
Petitioner prays that an order be entered,
A ~ TO JUSTICE ~ WHITE FOR ~ AN EXmSIo~ ~
OF TIME IN WHICH TO FILE A CERTIORARI PETITION
A
pursuant to 28 U.S.C. §2lOl(r), staying the exmution of his Under Rule 20.1 of the Rules of the Supreme Court of the
6 VOICE for the Defense/FeYlyuary 1984

United States, the certiorari petition is due within 60 days of
affirmance by the Court of Criminal Appeals (or, if rehearing
was sought, within 60 days of the date of the denial of rehearing).
However, the time for filing a certioraripetition may, "for good
cause shown," be extended for 30 days. Applications for exten-
sions of time are "not favored," Rule 20.6, but they have been
granted in several Texas capital cases.
An application for an extension of time to file a certiorari
petition must be fded no later than 10 days prior to expiration
of the 60 day tune limit, and "wiU not be granted except in the
most extraordinary circumstances" if fded during the last ten
days, Rule 29.2.
If a due date at the Supreme Court falls on a Saturday, coun-
sel must file by that date. Under Rule 29.1, Saturdays count.
LN THE SUPREME COURT OF THE UNITED STATES
October Term, 19-
v.
THE STATE OF TEXAS.
Petitioner,
Respondent.
(30) day extension of time for filing a petition in this Court
will expire.
This case may be stated briefly as follows:
1. After a jury trial in the Judicial District
Court of County, Texas, petitioner was found gmlty
of capital murder and was sentenced to death.
2. Petitioner appealed to the Court of Criminal Appeals of
Texas, claiming that his conviction and sentence were unconsti-
tutionally imposed on the grounds, among others, that:
[BRIEFLY SUMMARIZE THE STRONGEST CONSTITU-
TIONAL ISSUES RAISED ON APPEAL].
3. By opinion dated 19 - , reported at
S.W. 2d-and annexed hereto as Appendix A, the Court of
Criminal Appeals of Texas rejected petitioner's contentions in
their entirety, andaffirrnedhisconviction and sentence of death.
4. On , 19-, the Court of Criminal Appeals
of Texas denied [without written order] petitioner's motion for
permission to file a motion for rehearing. [If there was a written
order, attach a copy as Appendix B. If not, attach as Appendix
B a copy of the postcardnotifying you of denial of the motion.]
5. On , 19-, [this Court] [the Court of Crim-
inal Appeals] stayed the execution of petitioner pending the
filing and determination of a timeIy petltion for a writ of certio-
rari.
6. Since pehtioner's life is at stake, counsel wiU make every
effort to provide diligent representation in this case. However,
[state whatever difficulties you have whioh prevent you from
fillng the petition on time. Be specific, e.g., long trial approach-
iw, maior brief due, small law office withlimited help and large
- - -
backlog, etc.]
WHEREFORE, petitioner respectfully requests that, in view
- "
of the comolexitv and eramtv of the auestions involved. and
counsel's heaw resuonsibilities in other cases. the tie for
APPLICATION FOR EXTENSION OF TIME filing his 6r writ of cerborari be extended to and
IN WHICH TO FILE
PETITION FOR WRIT OF CERTIORARI
including ,19-.
Respectfully submitted,
To the Honorable Byron R. White, Associate Justice of the
Supreme Court of the United States and Circuit Justice for the
Fifth Circuit:
Petitioner ~ravs that an order be entered,
pursuant to Rule 20.1 of the Rules of the Court, extending the
time for filing a petition for writ of certiorari in the Supreme
Court of the United States in this case by thirty (30) days to
and including , 19_. In accordance with Rule
29.2 of the Rules of the Court, this application is being filed
more than ten (10) days prior to the date upon which the petition
is now due. The pertinent dates are:
19-: The Court oY Cr~minal Appeals
of Texas issued an opinion affirming petittoner's conviction
for capital murder and his sentence of death.
19-: The Court of Criminal Appeals
of Texas denied [without written order] petitloner's motion
for leave to file a motion for rehearing.
, 19-: Time for filing a petition for
writ of certiorari in this Court wiU expire, unless extended.
,19-: Petitioner's requested thirty
SAMPLE CERTIORARI PETITION
Certiorari petitions are best kept as short aspossible. It is im-
portant to lay out carefully the factual setting and the state law
frameworkwithin which the federalconstituional questions arise,
but it is neithernecessary nor desirable to argue the federal ques-
tions themselves at great length. Your goal is to establish not
only that the decision of the Texas Court of Criminal Appeals is
Incorrect, but also that (i) if is important for the Supreme Court
to resolve the questions presented at tins point in time and (ii]
your tax 1s an appropriate velucle for the Court's consideration
of those questions.
The most important part ofthe petitionis the section entitled
"Questions Presented," which is inserted immediately after the
cover page and before the table of contents. The Questions
should he drafted very carefully to convince the reader at the
February 1984/VOICE for the Defense 7

ouWt that yow wse has merit and is a worthy candidate
bt certiofari review.
It is ttot fieoessary to present a fedeial issue in a certiorari
petition in order to preserve it for a subsequent fed& habeas
c01pus prowding. You are free to raise a federal issue on
haheas corpus regardless af whether or not it has been presented
in the certiosari petition.
Be sure toincludein the eextiowri petition the section entitled
"How the Federal Questim Were Raised and Decided Below."
It is important for the Supreme Court to know in detail how the
chima raised in the petition were advanced and rejected at tbe
trial level and in the Texas Court of Criminal Appeals.
ANTHONY C. AhfSTUWAM
Stanford University ltlw School
Stanford, California 94305
A'ITORNEYS FOR PETITIONER
QUESTION PRESENTED
Whether the rule of W1tRwspqoon v. Eltnois, 391 US 510
(T9681, was Violated by the exclusion for cause of two prospec-
tive jurors who, although not opposed to capital puniSMeat,
refused to swear that the possible Lmposition of the death penal-
ty in thii ease would not "affect" their sentencing deliberations.
No. 77- TABLE OF CONTENTS
Mm SUPRUdE COURT OF *IIEUNmEED STATES
October Term, 1977
WILUAM DAVID HOVILA,
Petitioner,
V.
THE STATE OF TEXAS
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPFAX.8 OF TEXAS
JOHN JORDAN
3200 Maple, Suite 314
Dallas, Tern 75201
Question Presented ............................
citation to opinion %low .......................
JurisdicWn .................................
Constitutional and Statutory Provisions bvolved ........
Statement of the Cam ..........................
How the Federal Question was Raised 8ndDecided Below . .
Reasons for Granting the Wtit .....................
T%is Court should grant ~eniorsri to consider whether the
rule of Witherspam v. 111inois, 391 US. 510 (1968), wasviolated
by the exduston of cause of two prwpective jurors
who, although not opposed to capital punishment, refused to
swear that the pamile imposition of the death penalty in
this case would not "affect" th&i~ sentenoing delibaation$.
Conclusiou .................................
TABLE OF AUTHORITIES
JACK GREENBERG
JAMES M. NABRIT UI
JOEL BERGER
JOHN CHARLES BOG=
10 Columbus Circle, Suite 2030
NEW York, New York 15019
CASES:
Ballew~. Geo~&- US., 55 L.E~ 2d 234 (1978) . .
hddev. Stat8,- S.W.2d-(No. 58,337), decided
June 14,1978 .............................
Bums v. Stare, 556 S.W. 2d 270 (1977) ..............
Cbmbffs v. State, - S .W.2d (No. 54,676, deoided
May24,1978 .............................
RIMINAL DEFENSE LAWYERS PROJECT
P.O. Box 1*7, Capitol Station, Austin, Texas 78711, (512) 475-5498
6,1984 .........................
,
.ASSAULT ($75) ......................... .McAUen
Checks recehed by Monday, April 2 qualify for .%U% discount on publicaffms and assuranee of coutse
mat&, Door re&etmtl~tx fee $90.
MAY 18,1984 ........................ DWI DEFENSE ($75) ....................... .El Paso
This course has b well-aWed in the past; we urge you to register early. Checks received by Monday, May
7 qualify for 33% discount on publications and assurance of cow materials. Door re&tmtion fee is $90.
pa%e

Davis v. Georgia. 429 U.S. 122 (1976) ...............
Franklin v. State, - S.W.28-(No. 57,348, decided
May24,1978) .............................
Hovila v. State, 532 S.W.2d 293 (1975) ..............
Anderson Huahes v. State. 562 S.W.2d 857 (1978) .......
Billy ~eorge kghes v. Stare, 563 S.W.2d 581 (1978) .....
Lockett v. Ohio, 46 U.S.L.W. 4981 (July 3,1978) .......
Moore v. State, 542 S.W.2d 664 (1976) ..............
Shippy v. State, 556 S.W.2d 246 (1977) ..............
Taylor v. Louisiana, 419 US. 522 (1975) .............
Witherspoon v. Illinois, 391 US. 5 10 (1968) ...........
Woodson v. North Carolina, 428 U.S. 280 (1976) ........
STATUTES:
Texas Code of Criminal Procedures Article 37.071
Texas Penal codeSection 12.3 1
No. 77-
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1977
WILLIAM DAVID HOVILA,
v.
THE STATE OF TEXAS,
Petitioner,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS
Petitioner William David Hovila respectfully prays that a writ
of certiorari Issue to review the judgment of the Court of Crimi-
nal Appeals of the State of Texas in this case.
CITATION TO OPINION BELOW
The opmion of the Texas Court of Criminal Appeals is re-
ported at 562 S.W.Zd 243 (1978) and attached as Appendix A.
The Court of Criminal Appeals did not issue any opinionupon
denial of rehearing; acopy of the Court's notification to Counsel
of the denial of rehearing ts attached as Appendix B.
JURlSDICTlON
Jurisdiction of this Court is invoked under 28 U.S.C. Sec.
1257(3), petitioner having asserted below and asserting here de-
pr~vation of rights secured by the Constitutien of the United
States. The opinion of the Texas Court of Criminal Appeals was
rendered on February 8, 1978. Rehearing was demed on March
8, 1978.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. This case involves the Sixth, Eighth and Fourteenth
Amendments to the Constitution of the United States.
2. This case also involves the following provisions of Texas
law:
Texas Penal Code 812.3 1. Capital Felony.
[a) An individual adjudged guilty of a capital felony shall be
punished by confinement in the Texas Department of
Corrections for lie or by death.
(b) Prospective jurors shall be informed that a sentence of
life imprisonment or death is mandatory on conviction
of a capital felony. A prospective juror shall be disquali-
fied from serving as a juror unless he states under oath
that the mandatory penalty of death or imprisonment
for life will not affect his deliberations on any issue of
fact.
Texas Code of Criminal Procedure Article 37.071. Procedure
in Capital Case.
(a) Upon a &ding that the defendant is guilty of a capital
offense, the court shall conduct a separate sentencing
proceeding to determine whether the defendant shall be
sentenced to death or life imprisonment. The proceedrng
shall be conducted in the trial court before the trial jury
as soon as practicable. In the proceedmg, evldence may
be presented as to any matter that the court deems relevant
to sentence. This subsection shall not be construed
to authorize the mtroduction of any evidence secured in
violation of the Constitution of the United States or of
the State of Texas. The state and the defendant or his
counsel shall be permitted to present argument for or
against sentence of death.
(b) On conclusion of the presentation of the evidence, the
court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused
the death of the deceased was committed dehberately
and with the reasonable expectation that the death
of the deceased or another would result;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of
the defendant in killing the deceased was unreasonable
in response to the provocation, if any, by the
deceased.
(c) The state must prove each issue submitted beyond a
reasonable doubt, and the jury shall return a special verdict
of "yes" or "no" on each issue submitted.
(d) The court shall charge the jury that:
(I) it may not answer any lssue "yes" unless it agrees
unanimously; and
(2) it may not answer any issue "no" unless 10 or more
jurocs agree.
(e) If the jury returns an affirmative finding on each issue
submitted under this article, the court shall sentence the
defendant to death. lf the jury returns a negative finding
on any issue submitted under this article, the court shall
sentence the defendant to confmement in the Texas Department
of Corrections for life.
(f) The judgment of convict~on and sentence of death shall
be subject to automatic review by the Court of Criminal
February 1984/VOICEfor the Defense 9

Appeals within 10 days after certification by the sentencing
court of the entire record unless time is extended an
' - amtional period not to exceed 30 days by the Court of
Criminal Appeals for good cause shown. Such review by
' 1 the Court of Crimmal Appeals shall have priority over all
-
other cases, and shall be heard in accordance with rules
promulgated by the Court of Criminal Appeals.
STATEMEKT OF TAE CASE
By an indictment filed on January 24, 1974, William David
Hovila was charged with murdering Henry J. McClusky, Jr., on
or about June 27, 1973, in the course of a robbery. He entered
a plea of not guilty.
During the period February 11-25, 1974, Mr. Hovila was
triedinthe 194th JudicialDistrict Court of Dallas County, Texas.
He was convicted and sentenced to die. However, on April 30,
1975, the Texas Court of Criminal Appeals reversed his convic-
tion and sentence on the ground that his trial jury had been
selected in a manner violative of the standard3 for jury selection
in eapital cases mandated by Witherspoon v. Illinois, 391 US.
510 (1968). See Rovik v. Strite, 532 S.W.2d 293 (1975). The
State'smotion forrehearingwas denied by the Court of Criminal
Appeals on February 11,1976. Ibid.
During the period November 822,1976,Mr. Hovila was again
tried by a jury in the 194th Judicial District Court of Dallas
County. The constitutional question now presented arises from
the selection of that jury.
A. Voir $ire of ve& member William D. Glass.
Mr. William D. Glass was excluded for cause because of his
inability to take the oath set forth in Texas Penal Code Section
12.31(b), which requires the exclusion for came of every pros-
pective juror in a capital case who is unable to swear that 'Yhe
mandatory penalty of death or impsisonment for life will not
affect his deliberations on any issue of fact."SF 2436-37.'
Mr. Glass was not opposed to capital punishment. He believed
that it should be imposed in certain cases and, after hearing the
facts of peutioner's case described by the District Attorney,
agreed that this was the type of case in which he was capable of
voting for capital punishment. SF 2407-09. He was nonetheless
excluded for cause becausehe stated that his deliberations would
be "affected" by the death penalw in considering the following
statutory question posed ti jurors at the penalty phase of a
Texas capital case:
whether there is a probability that the defendant
would commit criminal acts of violence that
would constitute a continuing threat to society.
Twas Code Crim.Proc. Art. 37.071(b)(2J2 '
Mr. Glass stated thathe wouldanswer this question truthfully,
and that his deliberations would not be affeoted by the death
penalty to the point where he would answer the question un-
truthfully. SF 2423, 2428, 2435, 2436. He added, however,
that since the factual question posed by the statute is subjective
and interpretive, his deliberations on that question would be
affected by the death penalty. SF 2431,2434-35.
Defense oounsel's contemporaneous objection to the exclu-
sion for cause of Mr. Glass was overruled. SF 2436-37.
The complete transcript of the questioning of Mr. Glass is
annexed as Appendix B. The relevant excerpts are the following:
Q. [By the District Attorney] First, we would like to know
what your personal feelings are with regards to the question
of capital purrlshment in general.
A, We& I believe that there are cases where capitalpunishment
can and should be employed.
Q. All right, sir. Do you feel then that based upon the
proper facts and circumstances that the death penalty is
a proper punishment for certain types of crimes, I take
it?
.. A Yes -.-
Q. And do you feel yourself that you could sit on a death
penalty case and if the facts of the case, to your way of
thinking, warranted and justified the death penalty, that
you could vote fot it?
A. I t h so. ~
Q. Now, as I have told you, this case involves the murder
with malice of one person during the course of robbery,
that was a young attorney here in town by the name of
Henry J. McClusky, Jr. In the murder of one person dur-
ing the course of robbery, if the facts and circumstances
warranted it, is that the type of case that you could vote
for the death penalty.
A. Yes.
SF 2407-09.
Q. [By the District Attorney] Do you feel that capital pun-
ishment is a deterrent to certain types of crimes?
A. Yes, I thi so.
SF 2410.
Q. [By the Mstrict Attorney] Now, we are going to ask
that you answer these questions yes, in the event we get
to the punishment phase, and we ae bound to prove to
you beyond a reasonable doubt that the proper answer
to these questions should be yes, ifwe are to expect you
to answer them that way. So we are bound to prove to
you beyond a reasonable doubt that there is a probability
that the Defendant would commit criminal acts of vio-
lence that wouldconstitute acontinuing threat to society.
Do you feel that you could do that?
A. Yes, I could under those circumstances.
SF 2423.
Q. [By the Dwtrict Attorney] Now, sometimes a problem
arises when a juror in a particular case for some reason
during the course of the Mal, whether it be based upon
any evidence or based upon a personal feeling or whafever,
for some reason feels that the Defendant should
not be sentenced to death, for a personal feeling. On the
other hand, the juror feels that the State has proven that
the proper answer to each of these questions would be
yes and is fully aware that if he answers the questions
yes that the judgemust sentenee the Defendant to death.
You can see the poss~ble conflict there? Do you feel that
you could set aside your personal feelings, if you had

such feelings, and answer these questions based upon the
facts that you had before you, if they called for yes answers,
you could answer them yes, knowing the Defendant
would be sentenced to death?
A. If this is the law and this is what we are charged with,
yes, I don't think I would have-I think I could do it
without-.
Q. Well, let me explain it this way. The law says to be a
qualified juror in a death penalty case that a juror must
be able to say under oath that the mandatory sentence
of life or death would not affect his deliberations on
these issues of fact. Can you say that, or have I confused
you?
A. Say it again.
Q. The law says that to be a qualified juror in a death penalty
case, that a juror must be able to state under oath
that the mandatory sentence of life or death would not
affect his deliberations on these issues of fact.
A. Would not affect your deliberations?
Q. In other words-
A. No, I couldn't say that, the fact that I was judging something
that would take the life of a man would have to
affect my deliberations. How could I say under oath that
it wouldn't affect my deliberations?
Q. I don't know that you could.
A. I couldn't say that.
Q. You could not?
A. I could not say that it would not affect my deliberations.
Q. In other words, what you are called upon to do, and I
re&e-and I am not quarreling with you, sir, I mean
that's what I have asked for 1s your personal view and
that's what we want.
A. Right.
Q. You are called upon to answer these fact questions either
yes or no, based upon the facts without regard to the
fact that if you answer them all yes, the judge is going to
sentence hi to death or if you answer one or more of
them no, the judgeis going to sentence him to life. That's
what you are asked to do. You are asked to take an oath
that this mandatory sentence is not going to affect the
way you deliberate on the answers to these questions.
And if you say, you know, you just couldn't take that
kind of an oath, that's fine, that's what we want to
know, but I want to be sure that we are clear with one
another in what we are talkingabout.
A. No, I would have to say that it would affeetmy deliberations.
I think I would be lying if I didn't say so.
Q. I have no quarrel with you whatsoever, s~r, and I appreciate
your candor with me. ,
MR. KINNEY [Ihstrict Attorney] : We challenge for cause,
Your Honor.
EXAMINATION CONTINUED
BY MR. WILSON [Defense Counsel] :
Q. Mr. Glass, I just have one question. Would the manda-
tory penalty of hfe or death affect your deliberations to
the extent that you would give untruthful answers to
the questions asked?
A. No.
MR. WILSON: Your Honor, I think that must be the intent
of the Legislature. I think anyone would be affected, but
I think the intent of the LegisIature must be, would it
affect it to the extent that you would not truthfully
answer. He says he would be affected but he would still
truthfully answer the question, and we feel he's qualified.
MR. KINNEY: I don't-whatever the Court says.
THE COURT: Could you answer the questions based upon
the facts that you hear, without being concerned by
what was going to result by your answers?
A. Well, Your Honor, I think that that's the same question.
THE COURT: Well, it may be, but I am tryjng to get it clear
to myselfhow you feel about it.
A. Well, I don't thinkthat I could possibly say thatknowing
the effect of my answer would not affect my deliberations.
I am not going to tell you a lie.
THE COURT: I understand, I am just trying to fmd out how
you feel about it. But the law says in order for a juror to
be qualified to sit in a case like this, you must be able to
answer these questions without concerning yourself
about the effects of your answers, just based upon the
total facts that you hear fmn the witness stand, you
answer the questions yes, yes, no, no or however.
A. But, Your Honor, one of the questions is, do I think that
the probability exists that thi~ man will do something.
Now, that is in the area that is not an area of fact, so my
answer would have to be affected.
THE COURT: Well, it is a fact question, I mean that's what
you have, it's got to be based upon the facts that you
hear, and then you gather in your own mind whether or
not he would in all probability be a continuing threat to
society or whatever the question asks. But if you can't
do it, you know what you can do-we are not fussing
with you about how you feel.
A. I realize that.
THE COURT: Just trying to find out exactly how you feel.
A. Well, it seems to me that in -
THE COURT: Lf you can't take the oath that you would
answer the questions without being concerned about the
effects of your answers, well, you tell us.
A. Well, now, that's one question. The other question is
would it affect whether I answer the questions truthfully
or not answer the questions truthfully, but yes, it will
affect my deliberations. The fact that in the attempt to
get at it that you made the sentence mandatory, it would
affect my deliberations.
MR. SIMMONS [Defense Counsel] : Your Honor, we thmk
that the test is would it affect him to the extent that he
would be untruthful in his answers.
MR. TOKOLY [District Attorney] : May we have amoment?
THE COURT: Yes, sir.
MR. KINNEY. May I ask a couple more questions, Your
Honor?
THE COURT: You may.
February 1984/VOICE for the Defense 11

FXAMIWATION CONTINUED
8. The voir dim of venire member Linda F. Boyd.
hdrs. Lintla F. Boyd also was excluded for cause because of
BYrnKRimY:
her inability to%ake dhe ktidn 12.31@1] oath.
' Mrs. Boyd generdy famr& the death penalty. SF 2640.11.
Q. We are not-certainly not implying that if you were on She believed the death penalty to be a deterrat, SF 2641, and
the .jury that you would answer the questioB in any was capable of imposiag the death penalty under the faots of
0th man* othet than a tmtbful manner, certainly a cm asdesaribedhythep~osecutor, SF 2642. She also sta-d
not trying to imply that you would lie about rhe answers several times that she could and would answer truthfully the
to any questions that you were an the jury to answerI questio~~ posed to the jury at thepenalty trial. SB 2653,2654,
that's nbt redly the case,
2656,2657,2658,265!659. Shewasnonethelsss excluded for causa
A. I understand.
kaum she could not swear that she would beunaffected in her
B. The question is, do youfeelthvtthemanciatoty~ienten~, dehhrations at the malty phase by the pmpect of the death
knowing that ifyou answered all th~w of those quaMom penalty. SF 2653, zBP $5,2658,2660. Agdm, a ~on+wpo~mww
yes, the judge is going to sentencehim to death or if you objection by defense counsel was oyerNled. 5F 26GD.
answei om ar more no, he is going to sentenc~ him to Tire complete t~anmipt of the questioolng of Mm. Boy4 is
Ufe. Do you fed thai knavlhgthat would affect the my mexed as Appendix C Tkerelevant excerpts are the fallowing:
in wbtc$ you answered those q~'.?~tiOn~?
Q. [By the District Attorney] Now, in this case, the Dallas
A, 1 would haw to be t~uthhl and say rhat it Would certain- District Attorney's offi~e is seeking the death penalty.
ly affed the way in whieh I intefpreted certain fasts How do yau fee1 about 'the deathpenalty?
coming to me, that is, as 1 wderefstnd it" our jab wdd A. Well, I thirtk it depends od the facts in the cam, you
be to interpret thase facts, there's obviously a qwion know, tbac you really can prove that the person was
about them or there wouldn"t be a trial
guilty, then I think it would be, you know, okay for the
Q. Right nndImrtainly -
death pen&@, but if you have wy uncert&t&s about
A. Particularly the wnd question would, 1 think 1 would the case or anything like that, then I don't fel that the
have to be truthful and say that it would affcct the way perm should have the death sentance.
1 interpreteed those facts.
Q. Let me dhw a couple of area them that you talked
Q. Well, then you are saying it woU1d affect your ddihra- about. First of dI, let me ask you, are you saying thqt
tiom?
you are in fa= of the deathpmltg?
A. Yes, I have mid that before, &&'t 17
A. Yes, l am under cirwmt8taoms, certain reasons.
Q. You would answez them tmthfully, but you would have- Q. How long ha* you beenof tbat frame vf mind that you
the way you answered &-the mandatory sentence have been in favor of the deathpenalty?
then would have some effect on the way that you A. Well, I reall' hadn't thought about it that mqch until I
msweredthom qqWons?
cane down here Monday, and then that% whetl I really
A. I think SO, yes.
gat to thinkfw, you know, about the pros and the corn,
MR. TOEOLLY: Challenge.
but I guess ev6r since I had the right to vote, really, that
THE COW. Yau could not take an oath and my that it I even m d thinking seriousiy about, you know,
would ad affect?
politin: or mything of this line.
A. I cannot take an oath md say that it would affect my Q. Now, db you believe that tkecleath penalty is a deterrent
ddiberatiow, no sit.
to certain types of crime?
MR TOKOLY: We chdlmge,
A. Yes.
TIfE COURT: You may step aside.
Q. HaYa you k*pt ahreasf af newspapers eoncernbg the
MR. WILSON: Your Hm, don't I get to ask another ques- Supreme Court decision on the deathpenalty?
tion?
A. No, Ibveg't.
THE COW Weli, you may.
Q. Well, let me ask you this quMm: do you feeltAarifa
pemn gets thc death peniilty, if the jury assesses the
EXAMINATION CONTINUED
death penrtfty ahd the juae amws the derith penalty in
Texas, fh$t a person will be executed in the state of
BY MR. WILSON:
Terns?
Q. But, you would still answer the questions truthfully? A. Wait a minute, I didn't undersCand.
A. Yes, sit. a
Q. Do you feel tbat a person will aeually be erecuted 8
MR. WILSON: We object to the juror bein& excused. We feel given the death penaItyl
he3 ilualined.
A. Yes, I do.
MR. TO~~LY: We penist in our challenge for cause. 4. And knowing that, let ms ask you ifyou personally were
THE COURT: You may @and aside.
selected on the jury and you believed from the evidence
MR. SIMMONS: We per&t in our objection.
that the Defendant we guilty of the offense of murder
THE COURT: You may have your objection. You may stand with rnaiim in the cause of a robbery, and if the facts
aside, sir.
and circm&anoes called far it, would you vote for. the
SF 2425-37.
death pendty?

A. Yes.
Q. Now, I want you to understand that we are talking about
the taking of one human life here, a person by the name
of Henry J. McCluskey, Jr., we are not talking about a
mass murder situation. May I assume that knowing that
that your answer would be the same?
A. Yes.
Q. [By Mr. Tokoly] You are saying it would affect your
deliberations, and so therefore, you could not take an
oath that it would not; is that correct?
A. Yeah.
Q. Well, I eertamly don't have any quarrel with you about
your feelings in that area, and I thank you very much.
MR TOKOLY: AndYour Honor, we will challenge for cause.
SF 2640-42.
Q. [By the District Attorney] Let's assume you were selected
on the jury and you found the Defendant guilty of
the offense of capital murder. Let's assume further that
having found him guilty, you felt that the proper answer
from the evidence to those questions was yes, but you
knew that if you answered the question yes, the judge
would sentence the Defendant to death. Okay, now, you
felt though, on the other hand, from something you had
gotten in thecase,something you heard or some personal
feelings that you have, that the Defendant should not
die, and were it left up to you, the Defendant would not
receive the death penalty.
EXAMINATION CONTINUED
BY MR. SIMMONS:
Q. Mrs. Boyd, are you saying that it would affect you to
the extent that you would be untmthful on the answers?
A. No, I am not saying that I would be untruthful, my understanding
was that at the end I would have some kind
of reluctancy for answeTing yes on all of them, you
know, even though-
Q. Well, I realize the seriousness of the case and the seriousness
of the matter here that we are all concerned with.
My question to you, and I think you have just answered
it is, would you answer the questions truthfully?
Now, my question is, were you in that situation, could
you set aside your personal feelings concerning the Defendant
not receiving the death penalty, and answer the
questions an yes based upon the evidence in the case,
A. Yes, I would.
MR. SIMMONS: We submit she is qualified, Your Honor.
Mr. TOKOLY: May I ask her another question please?
knowing that the judge would sentence the Defendant to
death?
EXAMINATION CONTINUED
A. Well-
BY MR TOKOLY:
. I know it's kind of a tough question, but it is a situation Q. I don't think anybody is suggesting that you would be
that could arise, and this is why I ask you.
an untruthful person, and I certainly don't warit you to
A. Well, I think it's a possibility that I wouldn't, you know, think that that was the tenor of e~ther of the questions,
I wouldn't want the person to be sentenced for the death but the law simply says this, the law says that on this
penalty.
kind of a case, for a juror to be qualified, they have to
Q. Well, let me explam to you what we have here. We have, be able to say that this mandatory sentence of death or
for a juror to be qualified on this kind of a case, they life would not in any . way . affect their deliberations on
have to be able to say that the mandatory sentence of these issues of fact.
death or life would not in any way affect their delibera- MR. WILSON. I object to any way, Your Honor, that is not
tions on these issues of fact. Now, am I correct in under- included in the law.
standmg from what you have told me that you felt that THE COURT. Overruled.
if you were in a situation tbat you felt the man should MR WILSON: Note our exception.
not receive the deathpenalty, that this would affect you Q. [By Mr. Tokoly] Would not affect their deliberations on
in answering those questions, knowing that if you an- these issues of fact In the case, and I thought you told
swered the questions yes, the Defendant would be sen- me they would?
tenced to die; is that correct?
A. I would.
A. Yes.
Q. And it would affect you in answenng those questions;
Q. Then may I assume from your answer that you could is that correct?
not say under oath that the mandatory sentence of death A. That's what I said.
or life would not affect your deliberations on those issues; Q. I thought I understood you and you understand me.
1s that correct?
MR. TOKOLY: We challenge for cause, Your Honor.
A. Are you saying that it would not? '
Q. Yes. 1 am saying that you, from what I understand you
have told me, that you are of the frame of mind that
EXAMINATION CONTINEUD
you could not say that the mandatory sentence of death
or life wouldnot affect your deliberat~ons on those issues
of fact?
BY MR. SIMMONS:
Q. And my question again is, would it affect you to the
extent that you would be untruthful in the answers?
A. Well, somehow-
THE COURT: It's not a question of whether she would be
THE COURT. You are trying to say it would affect?
untruthful, she's going to have to take the oath.
A. Yeah, it would.
MR. SIMMONS: I understand that. I understand your answer
February 1984/VOICE for the Defense 13

1
SANFOIID KCULU3UGH, No. 351-83, Opinion on Discretionary Review on Court's own mtion,
Rev'd for reassessment of punislrment, 12/7/83, Judge TQn Davis.
AUTHORITY OF CA TO JmCNmr: D was originally convicted of lrmrder and a jury set
punishment at 20 TDC. After D's mtion for new trial was granted, D was retried and found
guilty by a jury but the court set punislnnent at the secons trial at 50 TDC. On appeal
the C9 fourad the punislanent assessed by the court violated N. Carolina v. Pearce, 395
U.S. 711, 89 S.Ct. 2072, 23 L.EB.2d 656 (1969) ard then granted D's requested refonnation
of the punishnent to 20 TDC.
CCA held that the authority of a court on appeal to refom a judgment under Art. 44.24
C.C.P. does not extend to the situation where the error involves p uniskt unauthorized
by law. A jud-t or sentence my only be refonned "to cause those instnrments to
reflect the true finding of the facffinder when such a finding is reflected in the ver-
dict or, in a hench trial, the pronouncement of the court's finding. " Milczanaw~ki,
645 S.W.2d 445. he judgment of the CA was reversed and the case rapanded for assessnent
of punislmt by the !E.
1 nOUGLAS CLIBUIW, No. 64,134, Theft, Rev'd, Judge W. C. Davis, 12/7/83.
MYMCN M REVOKE PROBATION SEmmG UNADJUDICATED BURTXWZ NOT NIrlISSIBLE: The state
I
I
introduced a pen packet which contained a inrkion to rwoke probation which in turn
refesred to an unadjudicated ektraneous offense, i-e., burglary. The state is entitled
to shod that the probation was revoked but is not entitled to show the details of the
I
offense that was the hsis for the revocation. Blanton, 633 S.V7.2d 903. The fact of
the prior conviction and the identity of the accused as the person so convicted are the
necessary elanents to prove a prior conviction; extraneous offenses are inadmissible
under Art. 37.07 C.C.P. In this case the j'xcors asked specifically to see this state's
exhibit and punishment was set a t the mxinnnn. Thus the court could not say the intro-
duction of the extraneous offense was mt prejudicial.
February 1984/VOICE for the Defense SD-15

) COUIWS CH%E: By footnote Judge DaYis anticipated a potential problem on
zetzial and forewarned the parties accordingly:
"l3ecause this case may be retried we nute that Appellant also raised
a contention of ermr in the portion of the charge applying the law
of parties to the facts. The charge included the phrase 'either
acting alone, or with another', and the record shaYs that no evidence
sup~,rted the theory of acting alone. The charge is erroneous.
HoWeoer, Appellant's objection that the charge 'fails to apply' the
law of pvties to the facts was not sufficient to alert the trial
Caurt to his conplaint nor to preserve error on this ground. We
trust that the trial court will amid this problem in the event of
a retrial."
L~ENIC CARRIERA, No. 68,803, Aggravated rape, Rw'd, Judge Miller, 12/7/83 (5/4
decision).
D m AGQ(Am RAPE CHAW=E: The charge on aggravated rape was
found to be fundamentally defective inasnu~ch as the allegation of the use of force
and of the use of threats was submitted disjunctively. The allegation of the use of
force alone is not an aggravating elemnt. el 656 S.W.2d 472.
~%W&EEI BIOQD, NO. 475-82, Cpinion on State's PBRt M'd, Judge W. C. Dads, 12flf83.
m~w~~~~B"YmFIZEDANDPIZIOR~CTIm~TOIPON
. .
MWP IR THSG CPLSE: A jury faoxf D guklty of pssessllon of methimphetanJne azff set
paisbment at 25 years c~nfinarrpnt aftm finaSng the =?&mcmmt pamgraph of the
uxkdzimt to to he. The mkacemmt pragm+ was based qm D's prior wnvtictim
in Cause No. C70-4674L. D pled guilty to F;ix oases at 8ne tine, including Ws cdse
nmkz. All nix case nwttws a@emed on th@ a&roQ&&e pprmrk for all six prior
MCtitIflS e!apt for the wiver of jurf! fm, which csntainea six ease nurWxs but
not &La cam nmkx. lZle judgnmt arid the do@kat siieet in this carse rawber recited

WILLIIW m~, No. 1008-82, Opinion on D's PDR: Rev'd, Judge Onion, 11/2/83.
AS D DID NCrP IKECT HIS REPUTATION AS TRIAL, STATE ERRED IN SHOWING D'S BAD REFU!SATION:
D had a showrm at the Trade Mart where he sold home furnishings. The C/W, an
interior decorator, went to the shawroam and ordered a brass bed, and paid with a
check. An order form was prepared and D told C/W the k d would be delivered in six
weeks. She never received the bed nor was her mmey refunded. D said he had business
difficulties at the tim? he ordered the brass bed from the manufacturer and because
of the dispute the bed was not skim in accordance with the order. On cross
examination of the C/W, D developed that the C/W had gone to D's showrm because
she liked his brass beds better than others. She was then asked "Did you check on
Mr. Smith (defendant) or his reputation prior to going to his showrom~?". She said
"No" . On redirect the DA established that after the order was placed, she had checked
on D's reputation with certain n;nned individuals and aver objection the following
developed:
"After checking with all these people about Mr. Snith's reputation, if you
knew those facts at the time that you placed the order, would you have
placed the order with this defendant?
A. No I would not have placed the order."
The court held that the clear import of the testhny of the C/Wwas that D had a bad
reputation. D did not present evidence as to character or reputation and did not by
the single question assert in any mer that D's reputation was god. It is reversible
error for the state to put the reputation of the accused in issue where the defendant
has not done so. mere the reputation of the accused is not in issue, the law prohibits
the state from directly or indirectly attacking his reputation. Gant, 513 S.W.2d 52;
Els, 525 S.W.2d 11; - Small, 634 S.W.2d 698; Freeze, 113 S.W.2d 5397
BOEEKE URICK, No. 68,802, Delivery of controlled substance, Rw'd, Judge Orlcon, 12/21/83.
ITP IS REVERSIBLE ERRDR FOR AN OFFICER TO REPEKC STATEMENPS MADE BY AN UNDWOVW
OFFICER lIwOwE0 IN THE CASE CONCERNING TWD SEe- ETnaasE OF cxmlmm ms-
J?F@l THE D-HEWSAY: During the trial the undercover officer testified he had
filed several reports concerning different cases on the evening in question and that
the times as stated in the reports were in conflict with each other. Apparently on
cross examination of the officer who received the bag of evidence, the defense questioned
the witness as to how he could renabx when he received the bag of evidence for this
particular ease from the undercover officer. Theseafter on redirect the prosecutor
was &tted to explain how he renabred receiving into his custody the evidence
used in this case, over a hearsay objection. The officer testified that Deputy Vickery
(the undercover officer) had told him that he wcdd be making a buy that night through
the use of XI that he would be buying fram a girl by the name of Kathy Urich in the
Port Arthur area and would be doing other cases that night; that he agreed to meet
with Vickery at a certain office and that when Vickery caroe in at 7:15 Vickery said
that he had gotten tm of them, i.e., a mother/daughter cadination which was the only
mther/daughter ccmbination made throughout the entire drug operation, that they sold
in pairs and that the officer zremembered Vickery talking akmt the Urich case; Vickery
wanted to know whether or not he could make other buys from the Urichs if possible
because there was talk of blackmllies being sold; Vickery stated that he felt she
was supplying gwd narcotics which she had gotten from a doctor; the officer gave
February 1984/VOlCEfor the Lkfense SD-17

Vickery the okay to go ahead and make other buys if it was possible; later that night
close to 9:OO the officer got the second case.
The court stated that hearsay evidence is that which a given witness offers in court
which is not based on his own knowledge but is merely a repetition of what he has
been told, and which is offered as pmf of the matter contained or stated therein.
Before it is reversible error, it wt be shown to be prejudicial to the accused.
!The officer's testinmy was clearly prejudicial to D in this case. - Salas, 403 S.W.2d
440; Garrett, 641 S.W.2d 232; - Ihrin, 563 S.W.2d 920.
"The undercover officer was the sole witness to the alleged sale by
mllant of the controlled substances. Appellant took the stand
in her own behalf and denied that she had ever sold pills to the
undercover officer or anyone else. mlant alleged that the infor-
mant, Bmis Sheffield, had stolen the pills out of her purse while
he was in her apartment on October 17, 1978. The state clearly
attempted to holster the testhmny of the mdercover officer by
allcwing the deputy to testify regarding any staterent made to him
on the night of October 17, 1978. Thus, the mst basic reasons for
excluding the out-of-court statmts of third parties was violated.
See Barber v. State, 481 S.W.2d 812,814. The purpose of the deputy's
testhmny could serve no other purpose than to blster the testimany
of the undercover officer, the sole witness to the allaed offense.
Such testimony was prejudicial and calls for reversal. -Garrett v.
State, 641 S.W.2d 232,236; Cabrera v. State, 395 S.W.2d 34.
-

\
Neilv. Biggers, 409 U.S. 188, 93 S.(3t. 375, 34 L.Ed.2d. 401 (1975).
JESSIE Dm, No. 68,577, Voluntary mlaughter, Aff 'd, Judge Odm, 10/26/83.
JURY MIS&ONDUC!F-DISCUSSI OF PAROLE IAW-iWNTOE REVISTIFD: D contended that discussion
of the parole law during jury deliberations constituted the receipt of other evidence
by the jury after it had retired to deliherate, entitling him to a new trial under
Art. 40.03(7) C.C.P. and such discussion constituted jury misconduct depriving him of
a fair an3 bprtial trial under Art. 40.03(8) C.C.P.
At the hearing on D's motion for new trial, D introduced Cheverier's affidavit into
evidence which basically stated that m of the jurors were talking about if the jury
gave him 20 years he muld be out in 6 or 7 years, that this juror said it was wrong
to talk ahout that type of theory but the only reason he consented to 20 years was
that he haped that D would get out in 6 or 7 years on parole, that if it had not been
for these statements he would not have voted to give him 20 years. At the hearing,
however, this smne juror testified he did not base his decision upon D getting out
in 6 or 7 years, that that part of his affidavit was untrue or at least not in his
own words. The court concluded that the trial judge, having the right to accept or
reject any part of the juror's testirrony, obviously accepted the juror's statanents
at the hearing over his affidavit attached to the motion for new trial, and in light
of the juror's testimony it could not be concluded that the IT: abused its discretion
in overruling D's motion for new trial under either Art. 40.03(7) or (8) C.C.P.
The court noted that in Munroe, 637 S.W.2d 475 a five judge majority expressed the
view that cases dealing with jury discussion of parole laws is appropriately analyzed
as jury misconduct under Art. 40.03 (8) ; however, no majority view coalesced with respect
to receipt of other evidence under Art. 40.03 (7) C.C.P. The court declined to follow
the plurality expressions in Part I1 of Muwce and the court held that either section
of the article my apply to the jury's discussion of parole laws, depending upon the
a facts of the case. Heredia, 528 S.W.2d 847, 852.
Under this record there is nothing to indicate a juror related any personal knowledge
of a particular case from which the jury tried to figure out the parole law. Such a
statement is referred to in the juror's affidavit cannot be construed as "other
teshny" der Art. 40.03 (7).
Under Art. 40.03(8) jury discussion of parole laws is always misconduct; whether the
same constitutes such error as to mandate reversal depends upon the particular circum-
stances of each case. Sanders, 580 S.W.2d 349.
EX PA- i%RCUS IWXQZ, No. 69,114, Opinion on State's &@tion For Rehearing: Denied,
Judge OdQn, En Banc, 9/28/83.
V A U Y DEFECTIVE THEFT dl? SERVICE INDIcIMEWT: Although not expressed in the
language of Sec. 31.04 P.C., the injured party is an elemst of theft of service.
'Enxi an indictment for theft of service mst allege the provider of services, i.e.,
the injured party.
February 1984/VOICEfor the Defense SD-19

No. 098-83, Opinion on D's PDR, Rev'd, Judge Clinton, En Bano,
1/18/8$.
C2Ol.W.T CLARLFIES STANDARD BY WHICH TRIAL COURT IS TO DETERMINE A DEFENDANT'S INCOMPETENCY
WHEN INCOMPETENCY IS RAISED DURING TRIAL: D was convicted of semual abuse of a child.
Aftet the jury returned its verdict on guilt and innocence, but prior to the entry of
judwnt sad sentence, D filed a motion requesting a jury trial on his incompetency to
stand trial, as authorized by Art. 46.02, Sec. 4(c), CX.P. The trial court overruled
the motion and D appealed to C/A.
On appeal, the C/A followed Sisco v. State, 599 S.W.26 607, and held that the proper
standard by which a trial court is to determine a D's incompetency when the issue is
raised during trial is whether there is "any probative evidence" to support a finding of
incompetency. The C/A thus rejected the "bona fide doubt" standard of Townsend v. State
427 S.W.2d 55 and Johnson v. State, 564 S.W.2d 707. Since the C/A found that the record
revealed "some probative evidence" of incompetency, the judgment was reversed and the
cause remanded for a jury trial on the D's competency to stand trial. Williams v. State
628 S.W.2d 848.
The State filed PDR with the CCA. The CCA, in an unpublished order, granted the State's
PDR and remanded to C/A for determination of issue not previously raised: that the D's
motion filed after verdict but prior to judgxent and sentenae dld not raise the issue of
competency to stand trial.
On remand, the C/A held that D's motion did raise the issue of D's competency to stand
trial, but went further and reversed its position on the standard to be applied by
adapting the "bona fide doubt" standard of Johnson, supra. Williams v. State, S.W.
2d - (11/22/82).
CCA, on D's PDR, agreed with second opinion of C/A that D's motion raised issue of D's
competency during trial under Art. 46.02, Sec. 4Cc1, C.C.P. However, CCA holds C/A
erred in its second opinion by reversing itself on the proper standard. CCA overrules
Johnson, m, and holds that the "some probative evidence" standard established in
Sisco, supra, is unifonnily applicable to Art. 46.02, C.C.P. proceeding where the trial
court must make such a determination.
HUGH RIERA, NO. 350-83, opinion on State's PDR, ~ev'd, Judge Miller, En ~anc,
1/18/84.
FAILURE TO RAISE IDENITY AT HEARING ON M/REV. PROBATION WATVES ISSUE: At a hearing on a
motion to revoke D's probation, D failed to raise the issue of whether he was the same
person previously placed on probation. Despite a total absence of evidence that he was
the same person, CCA follows Barrow v. State, 505 S.W.2d 808 and holds that D cannot
raise the issue on appeal. C/A reversed, State's PDR granted, cause remanded to C/A for
consideration of D's other grounds of error.
MIKE mYD, No. 63, 583, Delivery of marihuana for renumeration, ~ev'd, Judge W.C. Davis,
Panel 1, 2nd Q., 1982, 1/18/84.
SPEEDY TRIAL ACT VIOLATED: D was arrested, but was not indicted until 131 days after
arrest. State announced ready 173 days after arrest and failed to state that it was
ready within 120 days. Thus, burden on State to show sufficient time was excludable to
bring announcement of ready within 120 day limit.

Three excuses to exclude time p e t 0 the indictment were tendered: (11 unavailability
of evidence for the grand jury to consider; (2) grand jury was not in session and/or had
a full case load; and (31 unavailability of witnesses to testify before the grand jury.
As to the first excuse, the prosecutor argued that a two month delay in obtaining labor-
atory results of the marihuana should be excluded under Art. 32A.02, Sec. 4(6)(A). CCA
held that this exclusion was not available as the trial court could not have granted a
continuance due to the alleged unavailablilty until after it had acquired jurisdiction
(i.e., after an indictment). Plus, CCA noted that part of the delay was dae to a decision
to not submit the masihuana for lab analysis for over 1 month. Plus, this was not an
exceptional circumstance under Sec. 4(10) of the Act. Finally, the evidence was not
necessary to present the case to the grand jury.
As to the second excuse, CCA noted that according to Burford v. State, 657 S.W.2d 107,
the prosecutor's failure to present the case to the grand jury was not an exceptional
circumstance. Prosecutor controls when to submit a case to a grand jury.
Finally, the CCA noted that the complaining witness need not appear before the grand jury
for the grand jury to find probable cause. However, even if the 12 day delay due to the
unavailability of a witness to appear before the grand jury was considered, the State was
still not ready within 120 days.
M S-, No. 05-82-00355- (Dallas), Nxcder, Rev'd, Judge Sparling, Panel
Opinion, 1/6/84.
FAILURE M INSTRUCT ON D'S FAIURF 'IO TESTIFY AT PUNISfNlWT S- D testified at
guilt/innocence stage, but did not testify at punishment. Trial court overruled D's
requested instruction on failure to testify at puniskrment. C/A cited Bmwn v. State,
617 S.W.2d 234 and concluded thatD entitled to "failure to testify" instruction at
punishment stage even where he testified at the guilt/hnccence stage. Holding
based on fact that D waived 5th hendment privilege against self-incrimination only
at the guilt/inn~cence stage, nut at dsfnrent stage. Bnnn£ield v. State, 455 S.W.2d
732.
JEFF PARTEN, No. 10-82-117-CR (Waoo), Wder, Affid, Judge McDonald, Panel Opinion.
1/12/84.
SUFEICIENCY OF EVIDENCE: Evidence, based on D's pre-arrest, non-custodial statanents
to two people at scene of murder, sufficient to support conviction. Plus, statesnents
were properly admissible. Sanchez v. State, 589 S.W.2d 422.
CAUSE OF DE4TH-NON-~ TESTINXX: A justice of the peace examined body of
deceased shortly after death. At trial, State called the J.P. to testify that, in
her opinion, death was caused by a gunshot wound. C/A held that description of
wound, location of wound and opinion as to cause of death could proprly conre frmn a
non-expert witness. Johnson v. State, 139 S.W.2d 579; Salazar v. State, 193 S.W.2d
Febmary 1984/VQIC5 for the Defense SD-21

JOE runrr, m. 08-82-00294-CR (El Paso), M.m%r, Affianed, Judge Ward, Panel
capinion, l/ll/84.
-S-AWPTIVE PAIOWT DXlWG3Q TO NAlURAL PARFWP: D, a juvenile, waived jwefiile
court jurisdiction and indictment. Prior tn trial in district court. D wed to quash
indicttitat on pxnd that jwenile COUT~ failad to appoint a gum%$ ad litem inthe
absence of D's parent or legal guardian, citing Family Gade Ilrt, 51.11 C/A held that
&legetl mther of D, whn was wesen:t in juvdle ccmt, was le~pI1y mthw of D, even
~~ not natural mtha of D, due to dmtxine of adoption by astoppel. '191us, mJg
indictment pS0lw:ly WerrllZed.

DARRELL WAYNE GREGG, No. 63,685, Rev'd, Judge Teague, En Banc,
2/1/84.
D'S CONFESSION WAS INADMISSIBLE BECAUSE IT WAS THE RESULT OF AN
ILLEGAL ARREST: D was arrested by deputies when he was found in a
trailer home where the deputies believed four persons named in arrest
warrants resided. D was not named in the warrants, nor were any of
the named persons found in the trailer home. The deputies took D to
sheriff's office where he was interrogated for two and one-half hours,
then taken before a magistrate for warnings, after which he confessed
to the aggravated robbery in question.
The Court reversed rejecting the State's attempts to uphold the admis-
sion of the confession. Under the totality of the circumstances --
the threatening presence of five, presumably armed, deputy sheriff's,
their hurried intrusion into the house and the warrantless search of
D's residence, the handcuffing of another occupant, and the lapse of
two and one-half hours before being taken to the magistrate -- the D
did not consent to his seizure.
The Court concluded that the taint of the illegal arrest was not
removed by D's consent to search his residence signed after arriving
at the sheriff 's office, by the Magistrate's warnings and D's waiver
of riqhts, nor the fact that D read a co-D's confession implicating
him before confessing. This case is controlled by Taylor v. Alabama,
457 U.S. 687 (1982).
THOMAS REVARD THIEL, NO. 63,774, Aff'd, Judge Teague, En Banc,
2/1/84.
DEFENSE OF NECESSITY AVAILABLE IN ESCAPE PROSECUTION UNDER LIMITED
CIRCUMSTANCES: D, who was convicted of felony escape, TEX. PENAL
CODE, 938.07, claimed that he escaped because he sincerely believed he
was suffering from bronchial cancer and was not receiving sufficient
treatment for the disease he believed he had attempting to raise the
defense of necessity, TEX. PENAL CODE, 99 -22.
The Court held that medical necessity is a defense available in an
escape prosecution, but the D must show:
(1) that he seriously believed he was afflicted with an ailment
which he believed required immediate medical attention;
(2) that he escaped because he believed that he was not receiving
adequate medical care;
(3) that he did not 'effectuate the escape by force or threats;
(4) that within a reasonable time after escape he sought medical
assistance; and
(5) immediately thereafter he made a bona fide attempt to
surrender.
Because D, here, did not meet this test, his conviction was affirmed.
February 19841VOICEfor the Defense SD-23

NICHZGAN V. SUMMERS, 452 U.S. 692 (1981) DOES NOT AUTBORISrE DETENTION
AMD SEARCH OF A NON-OCCUPANT WBO IS FOUND ON PREMISES BEING SERRCHED:
D was convicted of possession of methamphetamine. Prior to trial, D
moved unsuccessfully to suppress the methamphetamine because it was
the result of an illegal arrest. D was detained by police when he
appeared at a house being searched pursuant to a combination arrest
and search warrant. He was not the owner of the house nor was he an
occupant, nor was he named in the warrant. The police frisked D twice
for weapons before transporting him to jail. The second frisk
resulted in the discovery of the methamphetamine for which he was
tried.
The Court of Appeals affirmed, Lippert v. State, 653 S.U.2d 460
(Tex.App. --Corpus Christi 19821 holding that *rra v. Illinois, 444
U.S. 85 (19791, applied only to public premises. In Ybarra the
Supreme Court held that policemen who had warrants to search a tavern
and arrest one of the bartenders were not authorized to search the
customers on the premi~es without probable cause to believe that they
were engaged in criminal activity. The Court of Appeals relied upon
Michigan v. Summers, 452 U.S, 692 (1981), extending it to apply to
non-occupants of searched premises. In Suffrmers the Supreme Court had
upheld an officer's right to detain the occupant of a hwe while exe-
cuting a search warrant.
The Court of CrifiiiUil Appeals unanimously reverse&. It found Ybarra
to be controlling, D's mere presence at the house where a search
warrant was being executed, absent any other evidence giving rise to
reasonable suspicion or probable cause, did not permit his detention
or the subsequent frisks. Summers is limited to temporary detention
. of the occupants of premises authorized to be searehed. All cases to
a the contrary are overruled.
EDWARD COOK, NO. 158-83, ~pp.'s PDR: Aff 'd, Presiding Judge Onion,
En Banc, 2/1/84.
TRIAL COURT NOT REQUIRED TO OFFER EVIDENCE IN SUPPORT OF CBANGE OF
VENUE ON ITS OPTM MOTION: D complained of failure of trial court to
offer evidence in support of its order for change of venue on its own
motion pursuant to TEX. CODE CRIM. PROC. ANN. art. 31.01. The Court
of Appeals affirmed.
On Appellant's PDR the Court of Criminal Appeals agreed. Language
from art. 31.01, "after due notice to accused and the State, and af ter
hearing evidence thereon,' does not require trial court to offer evi-
dence in support of his decision to change venue. Rather, it allows
the parties to offef whatever evidence they have either for or against
the change. Because of the evidence available, the court did not
abuse its discretion.
SD-24 VOICEfor the DefenselFebmary 1984

The Court also rejected the argument that it was a due process viola-
tion to base the change of venue on matters not specifically presented
at the formal venue hearing. Art. 31.01 contemplates that the trial
judge may order a hearing and change of venue based upon facts
available to him which are not necessarily in the record at the formal
venue hearing.
ONNIE MACK WAGNER, NO. 61,601, Aff'd, Judge W.C. Davis, Panel,
2/1/84.
NOTICE OF INSANITY DEFENSE MUST BE FILED AT LEAST 10 DAYS PRIOR TO
DATE CASE SET FOR TRIAL, NOT DATE ACTUALLY TRIED: D filed notice of
insanity defense in this murder case on June 16 when case was set for
trial on June 19. Because the court held a competency hearing, the
case did not go to trial until June 26. D's notice should have been
filed at least 10 days before June 19, the date the case was set for
trial.
EVIDENCE OF PHYSICAL CONDITION BEARING ON MENTAL STATE PROPERLY
EXCLUDED: D attempted to introduce evidence that he had shotgun
pellets lodged in his head and that his sinuses were enlarged,
apparently to show some mental weakness, less than insanity, that
might negate the specific intent to cause the victim's death.
However, D was charged with intentionally or knowingly causing death;
thus specific intent was not in issue as in Cowles v. State, 510
S.W.2d 608 (Tex.Crim.App. 1974).
WITNESS PROPERLY TESTIFIED AS TO D'S BAD REPUTATION EVEN THOUGH HE HAD
DISCUSSED ONLY A SPECIFIC ACT WITH ONE PERSON: Police officer
testified that he based his reputation testimony on discussion with
one other person and that discussion was only about a threat on that
person's life. The Court relying on Crawford v. State, 480 S.W.2d
724, 727 (Tex.Crim.~pp. 19721, found the reputation witness to be pro-
perly qualified.
Judge Teague dissented, pointing out that the officer was not qua-
lified because there was no showing that he had actually discussed D's
reputation. Instead the quote from voir dire shows that he had talked
only about specific misconduct, not general reputation. Judge Teague
issued the following warning:
McCormick, Ray, Wigmore, and all the other
greats who have expounded on the subject, or their
present day publishers, are implicitly warned by
the majority: Tear out of your books on evidence
the chapter on how a bad reputation witness is
qualified. ,
February 1984/VOICE for the Defense SD-25

Wxthefnt~ra, the testbny did not &OW that the D, if gu9lty, was gdlty only of crbinal
mischief.
WILLIAM ROBINSON, No. 3-82-087-CR (Austin), Attempted capital murder, Affirmed,
Per Curiam, Panel Opinion, 1/11/84
INDICTMENT NOT SUBJECT TO MOTION/QUASB: Attempted capital murder indictment charged
three co-D's with the offense. D's m/q was based on State's failure to state "specific
acts D committed". M/q properly overruled as D was asking State to plead its evidence.
COURT'S CHARGE NOT FUNDAMENTALLY DEFECTTVE: Application paragraph required jury to
find that D acted with the specific intent to commit capital murder - and that D did
knowingly and intentionally attempt to cause the death of the deceased. C/A held that
.the former (specific intent to commit capital murder) is required and that the Latter
(knowingly and intentionally) merely increased the State's burden. Plus, another portion
of the charge clearly required a specific intent to kill the deceased.
INPEACHMENT-RePUTATION WITNESS AND "HAVE YOU HlWEXI" @JESTIONS: Defense witness, who
testified essentially to traits of character, was effectively transformed into a rep-
utation witness by imprecise questions by defense counsel. Thus, "have you heard"
questions proper here. Plus, D failed to object to "have you heard" questions on the
ground that reputation had not been placed in issue.
ORAL CONFESSIONS NOT ADMISSIBLE, EXTRANEOUS OFFENSE ADMISSIBLE: D's oral statements,
made while in custody, were not admissible due to failure to comply with Art. 38.22,
Sec. 3, C.C.P. However, no objection was based on this ground. An objection on basis
that extraneous offenses alluded to by D in his oral statements was properly overruled
as the extraneous offenses were admissible to rebut the defensive theory of duress.
Thrush v. State, 515 S.W.2d 122.
INEFFECTIVE COUNSEL: Laundry list of alleged errors by D's trial counsel. ~lthough
counsel did commit errors (failed to object to evidence and failed to request jury
charge on accomplice witness), counsel rigorously presented defensive theory. Given
totality of representation, counsel not ineffective. Note: evidence was overwhelming
as to D's quilt.
TONY BMZIL, No. 04-83-00286-CR (San Antonio), Robbery, Affirmed, Per Curiam, Panel
Opinion, 1/11/84
EFFECTIVE COUNSEL ON APPEAL: 3, represented by appointed counsel, was convicted of
robbery. Trial court appointed the same attorney to represent D on appeal. Court
appointed attorney filed appellate brief and 38 days later, D (for the first time)
complained of counsel's adequacy.
On original submission, C/A abated appeal and remanded to trial court for appointment of
new attorney on appeal. On State's m/reh, C/A withdrew prior opinion and held that D
was attempting to manipulate and obstruct orderly procedure of C/A.
a26 VOICE for the DefwselFebruary 1984

KENNETH YORKO, No. A14-83-058-CR (14th--Hou.), Sale of Obscene
Material Conviction Affirmed, Judge Ellis, Panel
Opinion, 10-27-83
INDIGENCY ON APPEAL: D challenges TJC's denial of request for free
transcript. No statement of facts in record on appeal, Stipulated
evidence puts cost of transcript at $4,500 to $5,000, Trial counsel
was paid by someone other than D. D's affidavit of indigency was
admitted without objection, It showed: D's weekly salary is $350; his
assets include a $500 car and a $334 bank balance. CA found no error
in TIC'S refusal to provide transcript because: (1) affidavit was
notarized by D1s attorney and is therefore void, and (2) affidavit
was not dated.
JOHN MALLARD, No. 2-82-158-CR (Fort Worth), Murder Conviction
Affirmed; Judge Jordon, Panel Opinion, 11/2/83
MUST STATE REVEAL SOURCE OF INFORMANT'S INFORMATION? CA says no.
m: While D was in jail on other charges, unnamed informant told
police D killed X, While awaiting trial D sent unsolicited letter to
DA admitting murder of % and describing how he had hidden murder
weapon in police car on night of arrest. X's employer paid $25,000
reward. D argued he was entitled to name of informant and source of
information given informant. Record revealed informant did not know D,
was not a participant in crime, was not present at time of murder, and
was not a material witness. Held: under Supreme Court and Texas cases
disclosure of informant need not be revealed under these facts; to
require disclosure of source of informant's information might reveal his
identity and allow D to do indirectly what he could not do directly.
JERRY McCULLAR, No. 2-83-032-CR (Fort Worth), Probation Revocation
Reformed, Judge Hughes, Panel Opinion, 11/2/83
CAN CONCURRENT SENTENCES BE MADE TO RUN CONSECUTIVELY AFTER REVOCATION
OF PROBATION? CA says No. Facts: D pled guilty as result of plea
bargain to three felonies and was placed on 10 years probation, Follow-
ing a hearing probation was revoked and D was sentenced to 25 years
110 each for two felonies and 5 for the remaining]. Held: Although OK
to cumulate Dts sentence at revocation hearing with sentence for
offense which caused the revocation, it is fundamentally unfair for trial
judge to announce the 3 original sentences would rqn concurrently and
then change it later so that these 3 sentences would be stacked. "The
vice of tks procedure encourages a guilty plea with a promise not kept ."
WILLIAM LOVELACE, No. 05-61-00804-CR (Dallas), DWI Conviction ~eversed,
Judge Vance, Panel Opinion, 10127183
REVERSIBLE JURY ARGUMENT: Facts: D's car struck rear of Mustang and
car caught on fire resulting in both occupants' receiving second and
third degree burns on hands, legs and faces. [Both teenagers received
settlements from Ford on their defective product claims.] D presented
evidence that he had not had a drink at least two hours before accident,
February 1984/VOICEfor rheDefense SD-27

F
I- Va&t he was bazefoot when he encountered police because he had-lost his
@has in acoident, that he had also lost his thick-lensed glasses
ytithout which his visioh was ingtaired, and that he had ~eceived a large
contusion to head which may have resulted in his disorientation and
unsteadiness. State presented 3 officers to testify that D had alcehol
on breath, had bloodshot eyes and slurred speech, and that he seemed
discr~iented and had unsteady walk. State also Bresented testimony from
officer vho arrived after fire had been extinguished but who saw two
oeoupanls in back on ambulaace "burnt yea1 bad." At guilt-innoceacephase
DA made numerous references to extensive burn@ suffered by 2
teenage occupants. Over objeetioa he referred to "flesh hanging off
their .armsyt and hands. CA reversed because argument injected faots not
in evidence [no one testified to flesh hanging; no evidence eitker
occupant had burned arms? and was highly inflammatory and prejudicial --
Staters case was not SO overwhelming that argument could be classified
harmless.
NOLEN morn, No. 05-82-00494-CR (Dallas), Burglary Conviction Affirmed,
Judge Akin, Panel Opinion, 11/1/88
RULE THAT Ef,EPUTATION TESTIMONY CAN BE BASED ON SPECIFIC ACTS RELIJCTANTTLY
FOLLOWED3 GOOD DISCUSSION CRITICIZING RATIONALE: Evidence in burglary
case showed D had also conmritted rape and oral sodomy, At punishnent
9 Witnesses testif bed to D!!s bad reputation for being peaceful and
law-abiding. These 9 witnesses included: 2 police officers, rape
oounselor, investigator for D's former employer and 6 women who had
allegedly been raped by D. Hearing outside jupyts presence showed D had
apparently committed several doeen rapes, Testimony of 5 other victims
was bama on their own eqerienoes of being ra@ed by D, from experiences
of Others claiming to have been raped by D, from police offiaers who
told them about other rapes and past criminal activity, and finally from
people in conmtunity (based not on knowing D but from reports of his
crideal activity)-. apinions of other witnesses also based on specific
acts committed by D. w: Must follow TCA holding that OK to base
reputation on speeifio acts, However, this rule coaflicts with
traditional rationale for reputation testimony and is inconsistent with
rule that te,sf;imony as to specific bad aets, not resulting in final
conviet ion, are not admissible.
WOODARD ROBERTS, No. 6-83-018-CR (Texarkana), DWI Conviction Affirmed,
Judge Bleil, Panel Opinion, 11/1/83
30-MINUTE LIMIT ON VOIR DIRE NOT UNREASONABLE: D fails to show harm --
no showing he was prevented from asking questions that would allow him
to exercise his peremptory challenges effectively.
MARIO MARTINEZ, No. 13-82-219-CR (Corpus Christ i) , Aggravated Rape
Conviction Reformed, Judge Young, Panel Opinion,
10/27/83
ERROR TO CONVICT OF MULTIPLE COUNTS IN SAME INDICTMENT (NON-PROPERTY
OFFENSES): D was convicted of aggravated rape (75 years), incest (10
SD-28 WDICEfor the DefenselFebruary 1984

years) and indecency with a child (10 years), all alleged in the same
indictment. Held: Although carving doctrine has been abolished, rule
that D may be convicted for only one offense from each indictment has
not been changed by either TCA or Legislature (unless property
offenses are involved). Judgment reformed to show D convicted only of
first count.
See also, KENNETH McINTIRE, No. 13-82-231-CR (Corpus Christi),
Aggravated Sexual Abuse Conviction Reformed, Judge Nye,
Panel Opinion, 10127183, and
LARRY BULLARD, No. 13-83-087-CR (Corpus Christi), Sexual Abuse
Conviction Reformed, Judge Gonzales, Panel Opinion, 10/27/83.
BILL STATEN, No. A14-82-828-CR (14th--Hou,), Promotion of Obscene
Material Conviction Abated, Judge Draughn, Panel
Opinion, 11/3/83
COURTS WILL NOT LOOK TO EMPLOYER IN DETERMINATION OF INDIGENCY ON APPEAL
EVEN WHERE EMPLOYER HAS PREVIOUSLY PAID LEGAL FEES: Facts: D filed
pauper's oath to obtain transcript. At hearing he stated he earned
$350.00 a week and had no other sources of income, that his wife was
pregnant and unable to work, and that he could not pay the estimated
$2,700. for statement of facts. State presented no rebuttal evidence
but developed on cross-examination that D's employer (owner of adult
bookstore) had paid legal fees in this case and 2 prior obscenity
offenses. D testified his employer told him he would not pay costs of
having record transcribed. Held: CA rejected State I s invitation to
"pierce the veil of apparent indigency" and relieve county of paying "a
necessary business expense" of the adult bookstore business. Indigency
is determined on case by case basis andcourts are not to look to
financial status of relatives or other sources.
JERRY STELL, No. 01-82-0551-CR (1st--Hou,), Aggravated Assault Convic-
t ion Reversed, Judge Duggan , Panel Opinion, 11 I10 I83
ERROR mo WIT~RAW PUNISHMENT FROM JURY AFTER PROPER ELECTION WHERE D
ADMITS AT GUILT-INNOCENCE PHASE HE WAS TWICE PREVIOUSLY CONVICTED:
Facts: D's indictment alleged 2 prior felonies for enhancement; he
admitted during cross-examination at guilt-innocence that he had been
convicted in each case, even admitting that the second occurred "right
after" he had been released from the penitentiary on the 1st offense.
Prior to trial D filed timely election to have jury assess punishment.
TIC withdrew case from jury over D's objection and assessed punishment
at life. Held: - TIC'S action in dismissing jury over D's objection was
reversible error because D was denied opportunity to contest enhancement
allegatkons. (Note: D had raised question of finality in his
objection,) See also, Washington v. State, 654 S.W.2d 10, pending on PDR.
KENNETH JACKSON, No, 04-81-00373-CR (San Antonio), Delivery of Heroin
Conviction Reversed, Judge Reeves, Panel Opinion,
11/9/83
INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO ADVISE D SUFFICIENTLY
OF CONSEQUENCES OF JURY ASSESSMENT OF PUNISHMENT AT 2nd TRIAL:
February 19841VOICEfor the Defense SD-29

Jury in 2nd trial assessed punishment at 25 years. w: D denied
effective assistance of counsel as a matter of law. Although holding
wap based on single error of trial counsel, that error demonstrated
Obvious lack of knowledge of applicable legal princiDles governing
retrial. Due to attoraeyts adviae, D decided to go to jury at 2nd trial
which resulted in sentence 10 years greater than he would have received
had he gone to TlC for punishment, There could be no tactical reason
for such a choice.
JAMES THOUS, No, 05-82-0059s-CR (Dallas), Aggravated Robbery Convie-
tion Reversed, Judge Vsnce, Panel Opinion, 11/10/83
IS NECESSITY DEFENSE AVAILABLE XHW D'S OWN INTENTION OR NE'GLICENCE
CREATES TEE SITUATION? CA says Yes. Facts: 'R was arrested for
driving without a license. He resisted being handcuffed and began
fighting with officer , Arretiting officer test if ied that he %blacked
outn several times after D and his brother hit him. D denied striking
office+ but testified he was struggling to disam him, When help
arrived it was learned that officer's pistol, flashlight and gw were
dssing. D was charged with agpavated robbery. D claimed it w%s
necessary to take officer's pistol to avoid being shot, T/C denied D's
requested, charge on nerzessity. w: All 3 prongs of necessity defense
were raised by D's testimony. Unlike Nodel Penal Code, Tesas law does
not exclude necessity defense from situations where the actor's own
recklessness or pegligence may have created the situation calling for
his decision to violate the penal law to avoid the greater harm,
WIRO TANGW, No. 05-83-00475-CR (Dallas), Motion to Set ABide Velrdict
Overruled, Per Curiam Opinion, 11/8/83
WAIYFiR OF STATEMEWT OF FACTS BECAUSE NO DILIGENCE SEOPBN IN 4 MONTH DELAY
FROM NOTICE QF APPEAL TO COMPLAINT: D gave notice of appeal but did not
file designation of record or request preparation of statement of facts,
No objeetions to record were filed following canrpletion. Four months
after notice of appeal D seamed affidavit from court reporter that
aotes vere lost. Almost two months later he moved to have verdict set
wide based on that affidavit, CA overruled motfon, holdfog that D
failed to show diligence and that notes might have been available had
prompt request been made. (Note: Opinion does not discuss whether D
w ~ indigent. s
Nor does it discuss statutory provisions for retention
of court reporter's notes f ollowtng trial.
DANIEL RUIZ, No. 13-82-373-CR (Corpus Christf), Burglary Conviction
Reversed, Judge Kennedy, Panel Opinion, 11 110 /83

COMPETENCY HEARING SHOULD HAVE BEEN HELD: CA found TIC should have
conducted separate competency hearing based on following facts: D
testified at punishment in a non-responsive, rambling and often
incoherent manner [testimony set out in opinion] , DA ' s investigator
testified D had always "been a problem" and that his cases were "hard
to foreget because of the way he acts," and during punishment delibera-
tions jury sent note asking, "Could we offer, as part of the sentence,
psychiatric treatment as a condition to final sentencing?"
BEWARE: a 6'1", 195 1b. owner of his own shrimp boat may still be a
child. -+ See SAMUEL HUFF, No. 13-82-395-CR (Corpus Christi), Injury to
a Child Conviction Affirmed, Judge Nye, Panel Opinion, 11/10/83
SAMUEL WEST, No, 01-82-0426-CR (1st--Houston), Aggravated Rape
Conviction Reversed, Judge Levy, Panel Opinion, 11/17/83
INVOLUNTARY PLEA: NO WARNING OF PROBATION INELIGIBILITY: D's attorney
advised him that realistic punishment range for aggravated rape would
be from deferred adjudication to less than 15 years, Co-D, with prior
conviction, had received 25 years, D filed motion for probation and
then entered guilty plea to aggravated rape. T/C found D guilty and
assessed punishment at 25 years after PSI. While awaiting PSI D's
attorney still discussing deferred adjudication option. - Held: D's plea
was not knowing or voluntary. It was induced by his attorney's
erroneous legal advice. Because issue of probation was raised when D
filed motion for probation, TIC had duty to admonish D of his ineligibility.
BRENDA WASHINGTON, No. 01-83-00016-CR (1st--Houston), Unlawfully
Carrying Handgun Convict ion Reversed, Judge Bass,
Panel Opinion, 11/17/83
ERROR TO REFUSE CHARGE ON LEGALITY OF SEARCH: Facts: While attempting
to cash payroll check D engaged in heated argument with bank personnel.
Bank employee called police but argument had ended before police
arrived and D was in process of leaving. Police blocked her car and
testified that D began arguing with officer and shouting obscenities.
D was arrested for disorderly conduct and placed in police car. Search
of her car disclosed handgun in glove compartment. State argued search
was permissible as inventory and incident to arrest, D testified that
she accompanied officers quietly and denied shouting obscenities. TIC
refused requested charge under Art, 38.23 C.C.P. concerning the legality
of her arrest. Held: D contested the issue of probable cause for
her arrest when she took the stand and explicitly denied the truth of
the officer's testimony which would have constituted probable cause for
the arrest. If the jury believed her testimony, the police would not
have been justified in arresting D and the handgun would have been
inadmissible at trial. D had right to have jury determination.
February 1984/VOICE for the Defense SD-3 1

1%
h; % '
, . ;, Beverseri, Judge HughesJ Panel Opini~n, 11/16/83
~~~~~~L ERROR PllBEN NO "NOT GXJILTP" PilW INCLmm IN PERDICT mRW:
D plea aot gailty to the murder of his s%epson, TIC instructed jury en
1m 09 mdw, volunC&TY manslaughter, involuntary maaslau$hter,
crimiilally negligent homicide* recxkless injury to child, and criminally
negligent injmy to child. Although jury was also instructed that it
could f im3 D not guilty, there waa no form provided on wbich the jury
could find "not guiltyn and jury was told "suitable forms fop their
verdict were attac.hedrn ': Such gction mounts to instruction by
TLC 60 find D guilty* Funame~tal error even in absence of objection.
TRACX TERRY, No, 10-$3-030-CR (Waco), Murder Conviptioa Reformed,
Judge Hill, 11/17/83
CW AFFIRMATIVE FINDING OP WE OF DEADLY WEAWN BE BASED ON ACTIONS
OF PARTY RATEER TBAN D? CA says Yes- Under new penal code all pmies
to crime face equal orhinal responsibility, a~te: Judgment here
was reforfned 'ta delete finding tkaz a flrearrn was used sinee indictment
alleged three methads of cauaing death aand jury% verdict does not
specifg which was used; CA held that pipe wrench or plastic bag as used
here could support affirmtive finding of deadly weapon,)
WILLIE YOUNG, No, 01-83-0147QtCR (1st--Houston), Bxrglwy Conviction
Reversed, Judge Bulloc$, Panel Opinion, 11/23/83
ATlXWED BURGLARY INDICTMENT SW3ECT TO H ~ f TO O QUASH: ~ Indi~tIiB(abl;t.
alleged burgXarg by charging that D 'tattempted to enter a habitatton
owned by Earnestine Pine by breakiag a window, having intent to
by TIC. - IIe2d: 32rmr no* to grant Motion to Quesh. Subject ta timely
motion, state must alleg~ intent to commit theft or intent to aommit
some other felony in an indictment for atxempted burglary,
a oammit burglax-y.Ir D filed timely Motion ta Qeash which was ovemtlled
RAUL RQDRIGUEZ, No. 130820114m(. (Corpus ChrPsti?, Voluntary Manslaughter
Convict ion Affirmed, Judge Nye , Panel Opinion,
11/23/83
STATE DID NOT IMPEACH Om WITNE@t, WlCELT "fOGG33D" HaE$ilORY: State's
witness had previously given statement whic'b QontradiGted his trial
testimony, State claimed surprise and attempted to show that Witness
had given statement oa night of shooting WWch contradicted trial
testimong. Based on alctim of surprise TIC overruled D's objection,
Witness examined statwmiyt, after whioh he changed his trial testimony,
an appeal D argued State did not properly demonstrate it was entitled
to impeach it@ ~ w n witness Because: (1) no hearing outside jury's
Presence, (2) @lab of surprise baaed only on state's assertion, CA
found surprise shown in ftwhispesedw conversation before benah, Farther
found that state did not impeach his witness, but merely jogged his
memory.

HENRY ESPINOZA, No. C14-82-635-CR (14th--Houston)
RAYMOND ESPINOZA, No. B14-82-634-CR (14th--Houston), Aggravated Robbery
Convictions Reversed, Judge Pressler, Panel Opinion,
11/23/83
EXTRANEOUS OFFENSES WERE NOT "SIGNATURE" CRIMES SO AS TO ALLOW
ADMISSION: Facts: Primary offense -- On 9/4/81 Mr, and Mrs. G were
robbed at gunpoint in their Houston home. Mrs. G heard loud crash at
10:OO p.m., went to investigate and confronted 2 men backing her
husband into bedroom. Both men held guns, spoke English with Spanish
accent, and wore facial coverings, Mr. and Mrs. G were forced to lie
down and their hands were tied with Mr. G's neckties and their heads
were covered with clothing. Valuable jewelry and money were taken.
Ds were identified as robbers. Ds presented alibi defenses. In rebut-
tal State introduced extraneous offense -- On 7-21-81 Mr. and Mrs. R
were robbed of jewelry and money at their home in Fort Worth.
Robbers wore masks, and Ds were identified by voice and build, CA
ruled that similarities between offenses were not sufficient to be
"signature" of robbers, but were common, rather, to type of crime
committed. Similarities: gained entrance to victims' homes, robbed
them of expensive jewelry and money, spoke with Spanish accents, wore
similar clothing, tied victims with husbands' neckties , and pulled
phone from wall. Differences: no proximity in time or place [one in
Fort Worth in July; one in Houston in September]; in Houston robbers
threw heavy object through glass window whereas in Fort Worth they
silently and suddenly appeared inside; in Houston robbers spoke only
English, whereas in Fort Worth they conversed between themselves in
Spanish and to the victims in English; in Fort Worth they wore hoods
with slits for eyes and mouths, whereas in Houston one wore ski mask
with large eyeholes and other wore cap and bandanna,
KENNETH POSTELL, No. 01-82-00622-CR (1st--Houston), Burglary
Convict ion Affirmed, Judge Evans with Dissenting
Opinion by Judge Bass, Panel Opinion, 12/1/83
OK FOR TIC TO REQUIRE JURY ELECTION AT TIME OF PRETRIAL HEARING: D
assigned error to T/Cts requirement that he file election on punishment
at time of pretrial hearing and before voir dire, - Held: Art. 37.02
C.C.P . provides D must make punishment election at or before time he
enters plea; when TIC holds pretrial hearing under Art. 28.01 C.C.P.,
D can be required to file all pleadings at hearing, including election
to have jury assess punishment. Although record did not show D was
given required statutory notice of pretrial hearing, both he and his
attorney participated in it and D did not contend he was harmed by
lack of notice, D made no showing of harm. Dissent would hold TIC
prematurely compelled filing of punishment election before D had
opportunity to see, examiqe and strike jurors, thereby denying D his
right to make informed, intelligent election. Note: Both majority and
dissent cite conflicting cours of appeals decisions with no PDR history.
February 1984/VOICEfor the Lkfense SD33

i@&f#$~ MAY, No. 3-83-097-CR (Austin), Aggravated Assault Conviction
Reversed, Per Curiam, Panel Opinion, 11130/83
INEFFECTIVE ASSISTANCE FOR FAILURE TO HAVE MOTION FOR PROBATION SWORN:
CA Pound ineffective assistance of counsel because trial attorney
failed to have Dts motion for probation verified, Although normally
an isolated instance of alleged ineffectiveness is insufficient to
sustain claim, here the action of trial counsel could in no way be
considered trial strategy and resulted in totally precluding jury from
considering probation. (Note: CA rejected Rivas v, State, 627 S.W.2d
494 (Tex. App, 1982, pet. ref'd) for proposition that neither judge nore
jury is authorized to grant probation in a case in which D has used or
exhlbited a deadly weapon. )
WILLIAM TUMLIRSON, No, 05-82-01079-CR (Dallas), Murder Conviction
Reversed, Judge Allen, Panel Opinion, 11129183
DOCTORIPATIENT PRIVILEGE NOT WAIVED BY ORAL AGREEB6ENT: Facts: D, a
member of the Air Force on leave in Dallas, went to Air Force Regional
Hospital complaining he was nervous, anxious and had been contemplating
suicide. He was directed to Chief of Psychologic&l Services at base
hospital, a psychologist licensed by State. D revealed to Dr. his fear
that he might have killed someone, describing a vision of X's face
covered in blood with a. rope around her neck. D explained he had spent
several days with X the last week and was afraid he had killed her.
D gave Dr. X's address and phone number, agreeing orally that Dr. call
police to inquire of any reports of injury to X. Dr. called police
and revealed both D1s identity and details of D's conversation with
Dr. This call led to discovery of X's body and D's arrest. T/C denied
D's motion in limine to exclude any evidence regarding communications
, between D and Dr. m: D did not waive, confidentiality privilege
' of Art, 5561h RCS by orally agreeing that Dr. call police because statute
requires waiver of privilege in writing. (Note: Opinion addresses
error in admitting Dr, 'S trial testimony and does hold that Dr. had
no right to disclose confidential information to law enforcement person-
nel as he did.)
CHARLES MOORE, No. 07-82-0054-CR (Amarillo), Felony Theft Convictions
Reformed, Judge Reynolds, Panel Opinion, 11130183
IMPROPER JOINDER OF OFFENSES; NO CRIMINAL EPISODE WHEN ALL OFFENSES
RESULT AT SAME TIME FROM ONE TRANSACTION: D was convicted of 3 counts
of felony theft alleged in single indictment. Each count arose out of
D's participation as buyer at auction of farm machinery and equipment.
D was successful bidder on 75 auctioned items. For 68 items he
tendered check for $7,861 which was refused by bank, stamped "N.S.F."
After notice of insufficient funds D failed to make check good. CA
found no criminal episode to support conviction on each of 3 counts,
holding that only one offense was committed because alleged offenses
resulted at same time from one transaction and require same, common
fact for the completion of each offense alleged. Judgment was reformed
to show conviction and punishment only for 1st count.

MATERIALS from page 14
391 US. at 522 n. 21 (emphasis in original).
Prospective juror William D. Glass was excluded for cause,
over contemporaneous objection by defense counsel, SF 2436-
37, solely because he stated that he could not take the Section
12.31(b) oath. Mr. Glass approved of capital punishment, be-
lieved that it should be imposed for certain crimes, and clearly
stated that petitioner's case was the type of case in which he
could vote for capital punishment. SF 2407-09. He also believed
that the death penalty is a deterrent to certain offenses. SF 2410.
He was nonetheless excluded for cause merely because he said
that his deliberations would be "affected" by the death penalty
in considering one of the three statutory questions which the
jury would have to answer at the penalty phase:
whether there is aprobability that the defendant
would commit criminal acts of violence that
would constitute a continuing threat to society.
Texas Code Crim. Proc. Art. 37.071(b)(2). See SF2431,2435.
Mr. Glass said expressly that his deliberations would not be af-
fected to the extent of causing him to answer this question un-
truthfully. SF 2428. To the contrary, he repeatedly vowed to
answer the question truthfully. SF 2423, 2435, 2436. He also
stated, however, that since the question posed by the statute is
not purely factual but rather calls for an interpretation, SF
2431, 2434, the death-sentencing consequences of his answer
"would affect the way in which I interpreted certain facts com-
ing to me," SF 2434.
At no time did Mr. Glass state, as required by Witherspoon
that he would automatically vote against capital punishment
without regard to the facts or that he could not render an im-
partial decision as to guilt or innocence. He simply said that in
weighing petitioner's fate based upon the necessarily subjective
prediction of probable future dangerousness, the potentially
fatal consequences of his answer would naturally affect his in-
terpretation of the facts, SF 2435. Despite his general approval
of capital punishment, he felt that:
. . . the fact that I was judging something that
would take the life of a man would have to affect
my deliberations. How could 1 say under oath
that it wouldn't affect my deliberations?
SF 2426. Indeed, it is hard to imagine any juror, faced with deciding
the Texas statutory question of whether a defendant is so
dangerous that he should be put to death, not being so affected.
Surely such a venireman may not be excluded consistently with
Witherspoon. 3
A second prospective juror, Mrs. Linda F. Boyd, similarly
was excluded for cause, over objection, SF 2660, solely because
of her inability to take the Section 12.31(b) oath. Mrs. Boyd
said that she was in favor of the death penalty in some cixumstances,
SF 2640, that "it depends on the facts in the case,"
ibid; and she also stated expressly that she could vote for the
death penalty under the facts of this case as described by the
prosecutor, SF 2642. She believed that capital punishment is a
deterrent to certain crimes, SF 2641, and she said she could and
would answer truthfully the Texas statutory questions determinative
of sentence. SF 2653, 2654, 2656, 2657,2658,2659.
She was excluded for cause only because of her unwillingness to
swear that she would not be affected in her sentencing deliberations
by the fact that the death penalty was in issue. SF 2653,
2655,2658,2660.
The ground upon which Mr. Glass and Mrs. Boyd4 were excluded
for cause makes a mockery of Witherspoon. The Illinois
practice declared unconstitutional in Witherspoon at least required
some genuine opposition to capital punishment. But here,
Texas has permitted the prosecution to exclude for cause all
ve~re members having even the slightest qualms about the death
penalty. Obviously, to strip the jury of a.ll individuals who, although
favoring capital punishment, have the discernment to be
affected in their sentencing deliberations by the nature of the
unique penalty at stake, produces "a jury uncommonly willing
to condemn a man to die." Witherspoon v. Illinois, supra, 391
U.S. at 521.5
The decision of the Texas Court of Criminal Appeals sanctioning
the exclusions in petitioner's case is by no means an abberation
among Texas capital prosecutions. To the contrary, the
The National College for Criminal Defense will present its "Jury Selection" seminar March 16-18 at the Fairmont Hotel
in Denver, Colorado.
Faculty for the program will include some of this country's finest jury selection experts: Cathy Bennett, human relations
consultant, Houston, Texas; attorneys Gerald Goldstein of San Antonio, Texas; Garvin Isaacs of Oklahoma City, Oklahoma;
Richard Kammen of Indianapolis, Indiana; and Stephen Rench of Denver, Colorado.
Tuition is $275.00 for this two-and-one-half day seminar. Some scholarships are available.
,
Criminal defense attorneys and public defenders interested in the program should write to:
Or call (713) 749-2283.
Program Coordinator, NCCD
P. 0. Drawer 14007
Houston, Texas 77221
Deadline for registration is March 3.
February 1984/VOICEfor the Defense 35

THE STATE OF TEXAS,
excessive or disproportionate to the penalty imposed in similar
Respondent.
cases, considering both the crime and the defendant," Gregg v.
Geom, 428 US. 153,204 (1976), the Texas Court of Criminal
On Petition for a Writ of Certiorari to the
Court of Criminal Appeals of Texas
Appeals has, since the fding of the petition herein, continued to
disobey this requirement, and has to this day never vacated a
sentence of death on the basis of excessiveness or disproportionality.
See, e.g., Cain v. State, 549 S.W.2d 707 (1977), Ex parte
Prince, 549 S.W. 2d 753 (1977).
PETITION FOR REHEARING
For the foregoing reasons, and for the reasons set forth m the
petition for certlorm, it is respectfully requested that this Court
Petitioners Selwynn B. Gholson and Larry Joe Ross, who are grant this petition for rehearing and, upon rehearing, issue a
currently incarcerated under sentences of death, respectfully
petitlon thu Court, pursuant to Rule 51.2, for rehearing of its
writ of ceruorari to review the decision below.
order of June 20,1977, denying the petition for a writ of certiorari
herein.
Respectfully submitted,
The Court will recall that the petition sought review of re-
JAY TOPKIS
spondent's practice of conducting psychiatric mterviews of
RONALD W. MEISTER
incarcerated crim~nal defendants, in the absence of counsel and
without advlsing defendants of their rights, in cases in which
sanity is not m issue, solely for the purpose of obtaining evidence
345 Park Avenue
New York, New York 10022
to b~ used against defendants at trial. In the instant case, prose-
Attorneys for Petitioners
cution psychiatrists conducted lenethv pre-trial interviews of
petitioners, inquiring, inter alia, m& & circumstances of the
alleged offense. On the basis of the interviews, during which one
of the petitioners chose to exercise his right to remain silent, the
June 24,1977
psychiatrists testified that petitioners were "sociopaths" who
CERTIFICATE OF COUNSEL
x
were likely to pose a continumg danger to society. The prosecution
placed great emphasis on this testimony in support of its
argument that petitioners should be put to death.
Subsequent to the filing of the petition for certiorari herem,
this Court decided Brewer v. WilIiarns, -US-, 97 S. Ct. 1232
(1977), which emphasized a criminal defendant's right to counsel
at any post-arraignment stage of the proceedings. This Court
stated:
"Whatever else it may mean, the nght to counsel
I hereby certify that this Petition for Rehearing is presented
in good faith and not for delay, and is restricted to the grounds
specified in Rule 51.2 of this Court's rules.
Jay Topkis
Attorney for Petitioners
granted by the Sixth and Fourteenth Amendments
means at least that a person is entitled to
the help of a lawyer at or after the time that judi-
No. 76-6333
cial proceedings have been in~tiated against him."
97 S. Ct. at 1239.
It is therefore now abundantly clear that the type of secret
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1976
interrogation conducted m this case, after proceedings had begun,
des~gned solely to obtain evidence to use agamst defendants,
1s constitutionally impermissible. Indeed, respondent's violation
of the standard set forth in Brewer 1s so apparent as to render
summary d~spos~tion of this matter appropriate.
Moreover, the petition for certloran sought review of respon-
SELWYNN BARRY GHOLSON
and
LARRY JOE ROSS,
Petitioners,
-againstdent's
failure to afford petitioners an opportunity to present
mit~gatmg endence at their sentencing hearing. This Court two
weeks ago in Roberts v. Louisiana, -US-, 45 U.S.L.W. 4584
(June 6, 1977) made emphatically clear that "~t is essential that
THE STATE OF TEXAS,
Respondent.
the capital sentencing dec~s~on allow for considerat~on of whatever
mitigating circumstances may be relevant to either the particular
offender or the part~cular offense. 45 U.S.L.W. at 4585.
APPLICATION FOR SUSPENSION OF ORDER
DENYING PETITION FOR WRIT OF CERTIORARI
Tlus mtervemng decision, too, demonstrates why the decis~on TO THE HONORABLE Byron R. White, Associate Justice of
below merits review by this Court.
the Supreme Court of the United States, and Circuit Justice for
Fmally, in spite of th~s Court's ruling that state appellate the Fifth Circutt:
courts must determine "[wlhether the sentence of death is Pursuant to Rule 23.3 of this Court, petitloners hereby apply
February 1984/VOICE for the Defense 37

for suspension of this Court's order of June 20,1977 denying
their petition For a writ of certiorari, pending disposition by
this Conrt of their petition for rehearing.
Petitioners are currently incarceratedunder sentences of death
by the Texas Department of Corrections. Their petition for a
writ of certiorari to the Court of Criminal Appeals of Texas was
denied (Justices Brennan andMarshaU dissenting) by this Court's
order of June 20, 1977. In the absence of a suspension of that
order, the State of Texas will proceed with preparations for
their execution.
As will be set forth more fully in the petition for rehearing,
decisions of this Court, including Brewer v. WiIIims, -U.S.-,
97 8. Ct 1233 (1977), and Roberts v. Louisim, -U.S.-, 45
USLW. 4584 (June 6, 1977), and of the Court of Criminal
Appeals of Texas, readered since the f ~ of g the petition for
certiorari herein, demonstrate that petitioners have been denied
rights guaranteed to them by the Fifth, Sixth, Eith and Fourteenth
Amendments to the United States Constitution. Moreover,
the Texas Court has continued to disobey the decisions of
this Court which require state appellate cow to engage in
meaningful review of the proportionate imposition of death sentences.
These intervening developments since the filing of the
petition for certiorari demonstrates why the decision below
merits review by this Court.
For these reasons, werespectfully submit that this application
should be " aahted so orebarations for uetitioners' executions do
L L
not proceed whiie the petition for rehearing ispendiig.
June 24,1977
Respectfully submitted,
JAY TOPKIS
RONALD W. MEISTER
345 Park Avenue
New Ymk, New York 10022
Attorneys for Petitioners
PETITION TO THE TEXAS COURT OF CRIMINAL APPEALS
FOR WRIT OF HABEAS CORPUS
A federal court cannot grant habeas corpus relief on a federal
constitutional claim unless that claim has first been presented to
the state courts. 2% United States Code Section 2254(b). This is
known 8s "exhaust'ing state remedies." In most cases, there are
good constitutional claims available which were not presented
to the Texas Court of Criminal Appeals on the initial appeal.
Accordingly, it is necessaty to file a state habeas corpus petition
raising these issues.
Under Article 11.07(2) of the Texas Code of Criminal Pro-
cedure, the state habeas corpus petition h uld be made return-
able in the Court of Criminal Appeals? The petition should be
accompanied by an application for astay of execution.
The Court of Criminal Appeals, upon receiving the petition,
is supposed to transfer it to the court of ~onviction. Art. 11.07
(2&). That court must then decide "'whether there are contro-
verted, previously unresolved faots material to the legality of the
applicant's confinement." If the court finds no such issues, it
38 VOICE for the Defens~lFebruary 1984
transfers the case back to the Court of Criminal Appeals for a
final decision. Art. ll.O7(2)(c). If the trial court finds that SU&
issues do exist, it may resolve them by ordering ''affidavits,
depositions, interrogatories, and hearings, as well as usmg per-
sonal recollection." The court then makes findingsoffact,\nhich
are immediately transmitted to the Court of Criminal Appeals
together wifh the record of the habeas corpus proceeding. Art.
11.07(2)(d).
The text of Article I1.07(2) is set forth below. The statute
establishes a number of time limits which may be too lengthy
depending upon the execution date set. However, under Rule
I04 of the Rules of the Court of Criminal Appeals, the ttial
court has the power to reset the execution date to a later date
or to withdraw the execution date altogether whenever it detw-
mines that "an evidentizuy hearing or other proceedings are
necessary." The text of Rule 104 is also set forth below.
65th LEGISLATURE-REGULAR SESSION
WEAS CORWS IN FELONY CASES
CHAPTER 789
S.B. No. 1070
An Act relating to writs ofhabeas corpus in felony
cases: amending Section 2, Article 11.07, Code
of Criminal Prooedure, 1965, as amended: and
declaring an emergency.
Be it enacted by the LegiblaRue of the Stnte of Texvs:
Section 1. Section 2, Article 11.07, Code of Criminal Pro-
cedure, 1965, as amended, is amended7 to read aS follows:
Section 2.
"Sec. 2. (a) After &a1 conviction in any felony case, the
writ must be made returnable to the Court of Criminal Appeals
of Texas at Austin, Texas.
'(b) Whenever a petition for writ of habeqs corpus is filed
after final wnviction in a felony case, the clerk shall transfer or
assign it to the court in which the conviction being challenged
was obtained. When the netition is received bv that court. a writ
of habeas corpus, retu&ble to the Court of criminal ~ppeals,
shall issue by operation of law. The clerk of that court shall
make appropriate notation thereof, assign to the case a Fle num-
ber (ancillary to that of the conviction being challenged), and
send a copy of the petition by certified mail, return receipt re-
quested, to the attorney representing the state in that oourt,
who shall have 15 days in which it may answer the petition.
Matters alleged in the petition not admitted by the state are
deemed denied.
"(c) Within 20 days of the expiration of the time in which
the state is allowed to answer, it shall be the duty of the convict-
ing court to decide whether there are controverted, previously
unresolved facts material to the legality of the applicant's con-
fmement If the convicting court decides that there are no such
issues, the derk shall immediately transmit to the Court of
Criminal Appeals a copy of the petition, any answers filed, and
a certificate reciting the date upon which that finding was made.

Failure of the court to act within the allowed 20 days shall con- appropriate court of appeals.
stitute such a finding.
"(d) If the convictina court decides that there are controverted,
previously unres&lved facts which are material to the
legality of the applicant's confinement, it shall enter an order
within 20 days of the expiration of the time allowed for the
state to reply, designating the issues of fact to be resolved. To
AmendedJu& 24,1981, eff Sept. 1,1981.
104, Stay ofExecution in DeahPenalty Cases.
The order of a trial court setting the date for execution in a
death penalty case may be modified or withdrawn by the trial
resolve those issues the court may order affidavits, depositions, court should such court determine that an evidentiary hearing
interrogatories, and hearings, as well as using personal recollec- or other proceedings are necessary on an application for writ of
tion. Also, the convicting coutt may appoint an attorney or a habeas corpus fded pursuant to Article 11.07 of the Code of
magistrate to hold a hearing and make fmdings of fact. An Criminal Procedure. In such event the warrant of executionshall
attorney so appointed shall be compensated as provided in krti- be recalled.
cle 26.05 of this code. It shall be the duty of the reporter who is A ~ ~ 1,1pq ~ ~ , pCb. ~ 1,198~. ~ F ~ R
designated to transcribe a hearing held pursuant to this article
to prepare a transcript within 15 days of its conclusion. After FOOTNOTES
the convicting court makes findings of fact or approves the find-
1. Numbers preceded by "'SF' refa to pages of the transcribed Stateings
of the designated to make them, the clerk; ofthe
ment of Facts of petitioner's Mal.
convicting court shall immediately transmit to the Court of
Criminal Appeals, under one cover, the petition, any answers
filed, any motions filed, transcripts of all depositions and hearins,
any affidavits, and any other matters such as official re*
2. A " y~" answer to this questionand to two other questions posed by
Art. 37.071(b)(l)and(3)resultsin mandataryimposition of the death
penalty.
ords used by the court in resolving issues of fact." 3. Had the questioning of Mr. Glass shown that he would be ''affected"
Sec. 2. The importance of this legislation and the crowded by the praspeot of the dath penalty at the guilt phase as wen as at
condition of the calendars in both houses create an emergency the penalty phase, this Court would he presented with the more difand
an imperative public necessity that the constitutional rule ficult question of whether such a disposition suffices to makeit 'knrequiring
bdls to be read on three several days in each house be
mistakably c ~ ' that ' the veflireman is incapable of '%king an
impartial decision" ash, the defendant's guilt. Witherspoon v. Illinois,
suspended, and this rule is hereby suspended, and that this Act ,pTn, 391 US. at 522 n. 21. ~~t t ht issue IS not involved here be
take effect and be in force from and after its passage, and it is so
enacted.
Passed the senate on April 28, 1977: Yeas 3 1, Nays 0; passed
the house on May 26,1977, by a non-record vote.
. Approved June 16,1977.
Effective Aug. 29,1977,90 days after date of adjournment.
muse the questmning of Mr. Glass, and of Mrs. Boyd as well,focused
solely upon the penalty phase. And the Texas Court of Criminal
APP~, in affirming, has clearly interpreted penal code r 12.31@) as
applying to the penalty phaseas well as to the trial of guilt or innocence.
4. The facf that only two venire members were exslnded in violation of
Witherspoen at petitioner's trial does not, of course, maks the constitutional
error less revwsible. TIds Court has only recently ruled that
tha tlnconstitutional exclusion nf even one prosp&otive juror in a caprtal
case requites torersal of the death sentence. DBvis v. Georgia, 429
CODE OF CRIMINAL PROCEDURE
U.S. 122 (1976).
Art. 44.33
5. Suoh a selection standard also deprives the defendant of a jury consti-
Rule 103. Transmission of Record
tnting a moss section of the community, inviolation uf the Sixth and
Fourteenth Amendments, see Taylor 9. Loursima, 419 US. 522
(a) The record, on approval by the trial court, shall be filed (1975); d. Ballew v Georgia,-U.S. -, 55 L.Ed.Zd 234,24445
with the clerk of the tr$l court, who shall immediately transmit (197%). It further renders the jury incapable of performing its senit
to the appropriate court. ~ ~ ~ briefs ~ are not l to l ~
tencing
t ~
task in the manner rewred by the Ei@h Amendmen* as an
"indispensable part of the process of inflicting the penalty 04 death,"
be fled, in the trial court, and the transmission of the record Wodson v. ~~~~k carolim, 428 U.S. 280,304 (19761 (pIwaliq opinshall
not be delayed because briefs were not filed. S% Article ion); for rf a prospective Texas juror who ts not a.gdnst capital punish-
40.09(9) and (lo), Code of Criminal Procedure.
ment can be excluded for the reasons herein, or because he flnds in
(b) If an appeal in a non-death penalty case is being taken a given case that the death penalty should not he imposed even though
the answer to the three Texas statutory questions is 'Id' (see SF
from a county which is in more than one supreme judicial dis- 2425, 265051), obviously Is not permitting jumr to
trict, the clerk shall write the numbers of the supreme judicial "mdependent nutigating weight to asl)ects of the defendant's chara~
districts on identical slips of paper (or other,indiitinguishable ter and re~ord and to circumstances of the offense proferred inuntiobjects)
and put them in a container. When notice of appeal is sation," mkdt v. Ohto. 46 U.S.L.W. 49x1, 4987 W Y s3, 1978)
given, the clerk of the trial court shall draw a number from the
Wmality opmion).
)
container at random, in a public place, and he shall transmit
the record in that case (and any companion cases) to the Court
Of appeals for the ~orrespondlngly numbered supreme judicial
district. When companion cases include both death penalty and
non-death penalty cases, the in death penalty Shall
be transmitted to the Court of Criminal Appealsand a separate
record of the non-death penalty caws shall 6; transmitted to the
6. nespitc the clear langfiage of~rt. ll.D7(2)(a3, the clerk's office of the
Court of Criminal Appeals routinely advises attorneys to make state
habeas corpus petitions retmnable in the wutt of conviction rather
than in the Court of Criminal Appeals. To be on the safe side, it is
advisable to Ele a copy of the petitron m the court of conviction while
simultaneously frling the origrnal m the Court of Criminal Appe*.
7. Vernon's Ann.C.C.P. Art. 1107, 62.
February 1984/VDICE for the Defense 39

MULTIPLE LISTING--
A CONSTITUTIONAL
SAFEGUARD
by Stan Brown, Abilma
The jury is, in theory, the voice
of the people. However, blacks and
other mcial and ethnic minorities
and working class, poor, and young
people usually find few ''peers" on
Ameitcan juries. Jury selection syatems,
cloaked with the aura of de
mocraey in action, in fact serve to
systematically exclude many who
share their experienc~~ and values.
American jury systems are, by and
large, representative of the white,
middle-aged suburban middle class,
not the wholesoeiety . . . Many jury
selection systems require the use of
a particular source of names, usually,
voter registration lists, to obtain
potential jurors. When jurys have
proved to be unrepresentative, the
major cause most often has been the
the use of voter registration lists.
Recent research and reforms have
shown that the use of multiple lists
creates a sigaiflcantly more representative
pool of prospective ~urors.
JUR YWORK, Systematic Tech
niques, 2nd Ed., Sec. 5.01, 5.02,
Clark Boardman Co., Ltd. (1983).
challenge appears appropriate.
Article 33.09, Code of Crimii Pro-
cedure, states that criminal jury panels
and special venires shall be selected in the
same manner as civil cases. The applicable
civil statute requires that the selection be
done by "using as the sole and mandatory
source, all names on the voter registration
list from all precincts in the county."
V.A.C.S. art, 2094.
The "jwy wheel law" has been held to
apply to criminal trials. See e.& SheIby v.
State, 479 S.W. 2d 31 (Tex. Cr. App.
1972);seealso, V.A.C.S. art. 2101.
While Art. 2133, VACS., requires
that all jurors must be "qualified under
the Constitution and laws to vote in said
county," the Code of Criminal Procedure
states that "failure to registes to vote shall
not disqualify any person from jury ser-
vice." Art. 33.02. Case law indicates that
the purpose of Art. 33.02 is to eliminate
the excusal for cause of a prospective
juror for failure to register to vote. See
Kimehebe v. Sfate, 175 S.WZd 593 (Tex.
Cr. App. 1943).
In my opinion, a very persuasive argu-
ment can be made in most, if not all,
Texas counties that the selection of a par-
ticular criminal jury panel solely fmm the
list of registered votersinfringes upon the
accused's right to a trial by an impartial
jury under the Sixth Amendment and his
right to EqualProtection under the Four-
Tbis article will deal with both the law -teenth Amendment. Corresponding rights
and certain practical suggestions pertinent protected by Art. I, Sections 10, 15 and
to challenging a Texas jury panel in a 19 of the Texas Constitution arealso im-
criminal trial based on the limitations of plicated.
its source to the voter registration lists. Statistical evidence can be adduced in
While the disoussion will not be exhaus. any Texas county, I suggest, to show that
tive, it is beliewd that it will provide a the effect of limiting the source of pro-
workable basis f anyone representing an spective jurors to the voter registration
accused in a case in which that type of list is to oystemati~ally provide for the
underrepresentation or exclusion of mi-
norities on virtually every panel. This is
so because statisticai surveys show that
while amajority to eligible whites register
to vote, only a small minority of eligible
blacks and Mexiean-Gmerlcans do so. The
obvious effect, then, is that a madority of
otherwise qualified bhch and Mexican-
Americans we statutorily excluded from
consideration for jury duty.
The starting point for any challenge to
a jury panel is Art. 35.07, Code of Crimi-
nal Procedure which states in part that a
"party may ,challen@ the array only on
the ground that the officer summoning
the jury has wilfully summoned jurors
with a view to securing a conviction or an
acquittal."
Case law, however, has implicitly sanc-
tioned challenges to the array on grounds
other than that, incluw racial or minor-
ity discrimination or under-representation.
See e.g Tmpper v. State, 84 S,W. 2d 726
(Tex. Cr. App. 1935); Johnmn v. Stare,
467 S.W.2d 247 (Tex.Cr.App. 1971);
Rodriguez v. State, 513 S.W.2d 22 (Tex.
Cr. App. 1974); GranuieI u. State, 552
S.W.2d 107 (Tex. O. App. 1976). A mo-
tion similar to DEFENDANT'S MOTION
TO QUASH THE JURY PANEL in the
appendix should be fited to make such a
challenge.
Prior to the pretrial hearing, counsel
should research existing case law dealing
with challenges to selection methods rela-
tive to composition of grand juries and
petit juries. Although this article is con-
cerned with the exclusive use of voter
registration lists to obTm petit jurors, the
legal principles involved in cases dealing
with grand jury compositionare the same.
In TEei u. Sourhem &@e Co., 328
U.S. 217 (1946) the Supreme Court stated

the underlying constitutional principle:
The American tradition of trial by
jury, considered in connection with
either criminal or civil proceedings,
necessarily contemplates an impar-
ti jury drawn from a cross section
of the community. This does not
mean, of course, that every jury
must contain representatives of all
the economic, social,religious, racial,
political, and geographical groups
of the community; frequently such
complete representation would be
impossible. But it does mean that
prospective jurors shall be selected
by court officials without systematic
and intentional exclusion of any of
these groups. Id. at 220.
The "intentional exclusion" require-
ment under the Sixth Amendment has
subsequently been eliminated by the Su-
preme Coua:
In order to establish a prima facie
violation of the fair cross-section
requirement, the defendant must
show (1) that the group alleged to
be excluded is a "dstinctive'~oup
in the community; (2) that the rep-
resentation of this group in venires
from which juries are selected is not
fair and reasonable in relation to
the number of such persons in the
community; and (3) that this under-
representation is due to systematic
exclusion of the group in the jury
selection process. m en v. Missouri,
439 US. 357,364 (1979).
Based on those standards, the Supreme
Court held that the Missouri statute ex-
empting from jury service women who re-
quest not to serve, together with the male
petitioner's proof that women comprised
only 15% of jury venires while 54% of
those eligible forjury senrice were women,
required a reversal of his murder convic-
tion as violating the Sixth Amendment's
fair cross-section requirement. Id.
In Alexander K Louisiana, 405 U.S.
625 (1972), the black petitioner demon-
strated that while the voting age popula-
tion of the parish was 21% black, the grand
jury venue consisted of only 6.75%blacks.
Since Louisiana failed to adequately ex-
plain the disproportionately low number
of blacks in the selection process, the pre-
sumption of unconstitutionality arising
from petitioner's prima facie case was not
met, causing a reversal of his rape convie-
tion as a denial of Equal Protection. Id. at
628,632.
Taylor v. Louisiana, 419 US. 522
(1975) held that a male had standing to
object to the underrepresentation of wo-
men on the jury panel. The Court held
that his showing that the Louisiana statu-
tory provision exempting women from
jury service, absent the Fling of a written
declaration requesting to serve, resulted
in a jury wheel comprised of 10% women,
while 53% of those eligible for jury duty
were women, established an unrebutted
case of prima facie underrepresentation:
We accept the fair-cross-section re-
quirement as fundamental to the
jury trial guaranteed by the Sixth
Amendment and are convinced that
the requirement has solid founda-
tion. The purpose of a jury is to
guard against the exercise of arbi-
trary power-to make available the
commonsense judgment of the com-
munity as a hedge against the over-
zealous or misiaken prosecutor and
in preference to the professional or
perhaps overconditioned or biased
response of ajudge. Id. at 530.
Castaneda v. Partida, 430 US. 482
(1977) held that proof of the selection
over aneleven yearperiodof 39%Mexican-
Americas from a population having 79.1%
Mexican-Americans constituted orima
facie discrimition, reasoning:
in order to show that an equal pro-
tection violation has occurred in
the context of grand jury selection,
the defendant must show that the
procedure employedresultedin sub-
stantial underrepresentation of his
race or of the identifiable group to
which he belongs. The first step is
to establish that the group is one
that is a recognizable, distinct class,
singled out for different treatment
under the laws, as written or as ap-
plied . . . Next, the degree of under-
representation must be proved, by
comparing the proportion of the
group in the total population to the
proportion called to serve as grand
jurors, over a significant period of
time . . . This method of proof,
sometimes called the "rule of exclu-
sion," has been held to be available
as a method of proving discrimina-
tion in jury selection against a de-
lineated class . . . Finally, as noted
above, a selection procedure that is
susceptible to abuse or not racially
neutral supports the presumption
of discrimination raised by the sta-
tistical showing . . . Once the defen-
dant has shown substantial under-
representation of his group, he has
made out a prima facie case of dis-
criminatory purpose, and the bur-
den then shifts to the state to rebut
that case. Id, at 494-495. (footnotes
and ~itations omitted).
The same sort of Equal Protection
analysis applies to selection of petit jurors.
Hernandez v. Texas 347 U.S. 475 (1953).
A white defendant has standing to claim
discrimination in the exclusion of black
jurors. Peters v. Kiff, 407 U.S. 493 (1972).
Ballew v. Georgia, 435 U.S. 223 (1978),
by its holdimg that the Sixth Amendment
mandates a jury of at least six persons for
nonpetty misdemeanor offenses, further
explains the faircross-section requirement:
If the smaller and smaller juries will
lack consistency, as the cited stumes
suggest, then the common sense of
the community will not be applied
equally in like cases. Not only is the
representation of racial minorities
threatened in such circumstances,
but also majority attitude or various
minority positions may be miscon-
strued or misapplied by the smaller
groups. Even though the facts of
this case would not establish a jury
discrimination claim under the
Equal Protection Clause, the ques-
tion of representation does consti-
tute one factor of several that, when
combined, create a problem of con-
stitutional significance under the
Sixth and Fourteenth Amendments.
Id at 242.
The distinction betweena jury discrim-
ination claim under the Equal Protection
Clause and a claimed violation of the fair
cross-section requirement of the Sixth
Amendment appears vague, at best. "The
difference apparently lies in the fact,
among others, that under equal protection
analysis, prima facie challenges are rebut-
table by proof of absence of intent to dis-
February 19841VOICEfor the Defmse 41

* w e , w$& under && Aimnilmest 332 13%03.. . . Udih itfair mss*e&on aan in silid cfiusaym); mrnq
@t@-?$s8 intea k hehant bd the Stah. cMen& the si&ficanee in aa epl A &e, 4SO S.W. 2d 1147,849 ('Pa$. Cr.
my &ow "ttdequafe ju$tifict&nan fortbe protectian chalienge afa substantialunder- App. 1970) ("It ia not.. . clearfrom the
dispmp~te fepremtation of the rreprwntatiod 2s it cmxtes 8n fBfftr- record WMWT the jury canndmm
classes behe eompata$.* Dwm rr &Wu- ence of Wtentional' digcrinrination. The had mote than a list Of the ge&temd vatri,
4%9 US. st 371 @nq&2ty l. hg~ape of tha tule ia icpprc~riate to an . . . at the rim of the sdacfiail");
me~tin$]~ inf&oil.ba@d dandatd, but it$ contelit bohmm P. Sfate, 467 S.W. 2d 247,a52
But with regard to 60 %de of edu- and the requ&mv&s ofa p h faeie we me= GI. App. 1971) r%& ddattm
&onn* arr a method of proving cliscrim'ik are inrpaoi.baaadan JUAWWOY; may also phaw &at the percent- @F
tian in iuq selecfian under Equal Rota- &. 5.03 [I) (a) and [bJ.
Whiie persons wnmmed and impmeled
tion, "If a diwi9 ~ufibhtly lare PjnaWy,Dcwn rr ahsailn;s~4 tmb- . . .wa& higher than the actual White-Bhk
then it is unbly that it is dm ~kb' * e8 that both EqualProtection and @&I &g. ef ihe . . . ppulatIonU); J Q ~ a Z
chance Or aaident, and, in *e ahnee af hm&ent &&mg- a p&a fa& &e, 473 S.W. 2dS30,531 m. Cr.4p.
evidence to the eontrw, one muei con- g hnpac&b&-r"gu;rifig M, prod of 1971j rmis n~fbingm ths r~ord to
chde yiat m@ or other cW@ated fw- purp~ki fi-baora; neither act,tudl inhtte the nmber afMedcan AmeticaDs
E m en*ed iilW the @&ation procw." , pyob&Ie need be prowad; elr$ibIe to serve on junm in Wd CounW);
~~ 3. &&@4 430 %S. at and th, Menget need not be @ membr& &I$? V. Biate, 47Sr &W. 2d 31,m (Tm.
495, 8. f 3. of the mdempmmtd group. A deufal Cr. @ 1978 f%aks~ume [ma far
'To show that the. exelusion Fun$% of an ktintto & ~ ~ & e i r m & t jufy arl1ee11, of collm, me, as afedwal
the Sixth Amendment fair cross-s&xion to rebu~ a prima facie case. See JUKY- eonstituiadsl regufrement, reBe& 8 worn
requirement) is 'systematic' requircs only WORK, Id. at See. 5.03 (1 ). Wt,atevcr thc sectiotl ofthe popuiatim .. -'%uf*. . .Ule
nruof of which feature of the svstem oro- elusive distinctim bctwccn an bbuall're aata adldued by the ep ellant Is toqten.
- - -
;fud the m & ~ ~ m n ~ . . i. o&he i tectionvhllengs anda&ath Amendment t-ati~e a& &agmmtary*jl; md fkhnuid B*
ptitaa Tach w e may be owareom Baly fais ~ss-Bectitrn chaltenge,~ aLFo Jba StrrE~~ S2 S.W. Zd 107, I20 (Ta, Cr.
by a anwiing Wlat a &gniBa~ st%@ in- v. &%so& wpm, 439 U.S. .at 3&1, n. 26, App. 1976) ("Appemt does mt conterm

I had the opportunity to present such trial court denied our motion. "Many see that all criminal juries are more reprea
challenge in an appointed capital case in judges are predisposed to reject jury chal- sentative by the use of multiple sources.
1982. We fded the motion m the appen- lenges. At issue are the actions of court The eventual use of multiple sources to
dlx and had a pretrial heanng that mcluded personnel often including the judges supplement the voter registration list in
testlmony of a sociologist from one of themselves. The in~tial reaction of many obtaining jury panels or special venires
the localcolleges that blacks and Mexican- judges is to cons~der a jury challenge d~la- should be significantly beneficial to many
Americans are racially Identifiable groups tory." JURYWORK, Id. Sect~on 5.01. or our future clients. A system that will
and that in 1980 Taylor County had a Be that as it may, that question, by its increase the odds of acutaUy reaching the
total of 69,499 persons who were eh~ble nature, appears to be the sort that requires ideal of "an impartial jury drawn from a
to vote, that 59,236 of those were white, resolution by the appellate courts. At any cross-section of the community" in every
6,429 were Mexican-Amencdn and 3,834 rate, there was no appellate cons~deration criminal trial is an attainable goal.
were black.
of our particular challenge because we
The testimony then related that out of were later offered an acceptable plea barthe
59,236 eligible whites,37,626 (63.5%)
were registered; out of the 6,429 ehgtble
gain. Had the case gone to trial, we would
have seen that the record reflected the
APPENDIX
Mexican-Americans, 1,896 (29.5%) were
registered; and out of the 3,834 eligible
blacks 682 (17.8%) were registered. The
clear meaning of these statistics was that
while our jury selection system based on
the voter registration list only excludes
total number of Mexican-Americans,
blacks and whites on the special velure.
Our motion would have then been renewed
at the conclusion of the voir dire.
As mentioned, the important statistical
testmny in our challenge came from a
As one might imagine, the research
material available m this broad area is voluminous.
Below are citations to some
additional material not citedin the article.
Annot., "Construction and Applica-
36.5% (11,610) of the ehgible whites, it local sociologist. In my opinion it is cru- tion of Provisions of Jury Selection and
serves to systematically exclude from cial to obtain, if at all possible, the assistconsideration
for jury servlce 70.5% ance of a soc~olog~st in making such a
(4,533) of the elig~ble Mexican Amer~cans challenge. Other potentlal sources of staand
82.2% (3,152) of the eligible blacks. tistical evidence are the Bureau of the
Additionally, the trial court was made Cewus; the Data Services Division of the
aware of the Unifonn Jury Selection and Secretary of State's office, the Southern
Service Act of 1968," 17 ALR Fed.
Annot., "Proof as to Exclusion of or
Discnmmation Against Elig~ble Class or
Race m Respect to Jury in CriminalCase,"
1 ALR 2d 1291.
Service Act, 13 Uniform Laws Annotated Legal Defense Fund, Atlanta Georgia: Annot., "Systematic Exclusion or Un-
509 (1980) which directs that the primary NAACP Legal Defense and Educational derrepresentation of Identifiable Group,"
source fur jurors, the voter registrat~on Fund, New York, N.Y.; Southwest Voter 9 Am. Jur. POF 2d 407.
hst, shall be supplemented w~thadditional Registration Education Project, San
names from other lists such as uthty cus- Antonio; as well as varlous other local Comment, "Criminal Zaw-The Fair
tomers, taxpayers, motor vehicle regis- and state minority organizations.
Cross-Section Requirement: Defendant's
trations and drivers' licenses. We then I believe that the filing of a motion such Friend or Foe?" 4 West New Englond L.
were able to get the county's computer as that in the appendix should be cons~d- Rev. 317 (1981).
programmer, who feeds the names of per- ered in every capital case and certain other
Daughtery, "Cross Sectionalismin Jury
sons on the voter registration hst Into a senous felonies Whiie the law of jury
Select~on Procedures After Taylor v. Loucomputer
to select all jury panels for a selection pertaining to dwrimination and
isiana," 43 Tenn. L. Rev. 1 (1977).
week, to acknowledge (rather grudging- underrepresentatlon applies in all criminal
ly) in testimony that the computer could cases, a seems that the type of challenge Dogin & Tevelin, "Jury Systems of the
be set up to be fed additional names from to the system outlined here should be Eighties: Toward a Fairer Cross-Section
other lists such as those ment~oned above. reserved for those tougher cases we a11 and Increased Efficiency," 11 U. Tol. L.
"Multiple list systems routinely produce handle occasionally. I also suggest that a Rev. 939 (1980).
80% inclusweness . . . Representat~on of trd court's den~al of the motion and subblacks
and young people . . . has been im- sequent appeal on that hasismight provlde Jud~cial Conference of the Umted
proved by supplementation w~th driver's a suitable case for the involvement of States, "Report of the Committee on the
license lists." JURYWORK, supra, Sec- T.C D.L.A.'s Amlcus Cur~ae committee. Operation of the Jury System," reprinted
tion 5.04 (1). , Accordmg to the bylaws one of our
as Appendix to the Opinion in Foster v.
There was also testlmony from the purposes is to "msure by rule oflaw those
Sparks, 506 F.2d 805 (5th Cir. 1975).
computer programmer and the D~str~ct ind~vidual rights guaranteed by the Texas Ka~rys, etal, "Jury Representativeness:
Clerk that Taylor County does use the and Federal Constitutions in criminal A Mandate for Multtple Source Lists," 65
voter regntration hst as the sole source cases." As~de from striving for a truly rep- Cal. L. Rev. 776 (1977).
for obtaming jurors and the trial court resentative jury from a fair cross-section
took judicial notice that the defendant of the community m an individual case, Kennedy, "Constitutional Trends of
was a member of the county's black pop- our broader goal should be to contmue to Systematic Exclusion in Grand and Petit
ulation. Not surprisingly, however, the challenge this present system in order to Juries: 3 Nut. J. Oim. Def 277 (1977).
February 19841VOICE for the Defense 43

Munsteman, "'MultipIe Lists for Juror Fotd v. Hollowell, 385 F. Supp. 1392
Sdctin," Law Enforcement Assfstance (D.C.N.D. Miss. 1974);
Administration, U.S.G. P.O., Washington, De La Gana v. Sate, 650 S.W. 2d 870
O.C. (;1978),
(Ca 4-San Antonio 1983).
Sperlch, "Methods for the Analysis of
Jury Panel Selections Testing for Discrim-
ination in a Series of Panels:' 6 Hastings
Const. L. a 787 (1979). No.
Zeigler Toung Adults as a Cognizable of T~~~ ij Inthe 104th
Group in Jury Selection:' 76 Mich L. I[ District Court
Rev. 1045 (1978). v. jl of
i Tavlor Countv
SOME RELEVANT CASES
NOT CITED IN ARTICLE
(5th Cir. 1971);
, Simmons v. US., 406 F.2d 456 (5th Cir.
19691
Beny v.'~ooper, 577 F.2d 322 (5th Cir.
1978);
Salary v. Wilson, 415 F.2d 467,472 (5th
Cir. 1969);
Pullurn v. Greene, 396 F.2d 251 (5th Cir.
1968'1:
US. v.%ms&urv, 408 F. Sum. -. 1130
@.C. Oregon i976);
ASSISTANT FEDERAL PUBLIC
DEFENDER for the Western Dis-
trict of Texas, positions in San
Antonio and El Paso. See 18 U.S.C.
83006A. Must be bilingual [in 8pan-
ish), and be licensed for at least one
year. Federal criminal trial exper-
ience preferred. Resume or Standard
Form 171 to Lucien B. Campbell,
Federal Public Defender, 727 E.
Durango Blvd., B.138, San Antonio,
Texas 78206.
Jane Doe as
Turner v. Fouche, 396 US. 346 (1970); DEFENDANT'S MOTION
Whitus v. Georaia. 385 U.S. 545 (1967): TO QUASH TIIE JURY PANEL
Washington v._l)avis, 426 US. 229,241
(1976);
TO THE HONORABLE JUDGE OF
Rose v. Miickell, 443 US. 545 (1979); SAID COURT:
GIasserv. US.. 315 US. 60 (1942'1: Now comes the Defendant, in the
above styled and numbered cause, by and
330 (1976);
through her attorney of record, and prior
Smith v. Texas, 31 1 U.S. 128 (1940); to the impanelling of any prospective jur-
Akins v. Texas, 325 U.S. 398 (1945); ors herein and before any interrogation of
Labat v. Bennett. 365 F. 2d 698 (5th Cir. those summoned for jury service, and PUS-
19653;
suant to Articles 33.02, 35.06 and 35.07
Broadway v. CWpepper, . - 439 F.2d 1253 of the Texas Code of Criminal Procedure,
and Article I, Sections 10, 15 and 19 of
the Texas Constitution, and the Sixth and
Fourteenth Amendments to the United
States Constitution, moves the Court to
quash the panel of prospectivejurors called
for this case for the following reasons:
44 L(OIC6 for the DefstselFebruary 1984
. ,
1
Defendant would show the Court that
whether by s ped venire or otherwise, all
prospective jurors in Taylor County are
selected from the voter registration roles.
Defendant would further show the Court
that there are statistics to show and dem-
onstrate fbt in Abilene and Taylor Coun-
ty approximately 63 percent of the eli@
ble white population registers to vote,
approximately 17 percent of the eligible
black population registers to vote. Defen-
dant would further show the Court that
Defendant is a member of the black pop-
ulation of Abiiene. As a result of low per-
centage of minorities which register to
vote in Abilene, and the exclusive use of
the voter registeration roles to seIect pro-
spective jurors, the effett of the Taylor
County procedure is to systematically ex-
clude a majority of the blacks and Mexi-
canAmericans who are eligible for jury
service from any consideration therefor.
WHEREFORE, Defendant prays that
the Court grant this Motion and quash
the panel of prospective jurors called for
this case, or, alternatively, prior to the
calling of same, enter its appropriate order
that, in this case, prospective jurors shall
be randomly selected from among all res-
idents of Taylor County who are eligible
for jury service, whether registered to
vote or not.
Respectfuny submitted,
STAN BROWN
P.O. Box3122
Abilene, Texas 79604
915-677-1851
Bar No.
Attorney for Defendant
VERIFICATION
Before me, the undersigned authority,
on this day personally appeared Jane Doe,
who after being duly sworn stated: "I am
the Defendant in the above styled num.
bered cause. I have rad the foregoing
MOTION and swear, to the best of my
howledge and belief, that the allegations
contained therein are true and correct.
JANE DOE
Subscribed and sworn to before me,
by the said Jane Doe, on this the
day o f , 1982, to certify which
witness my hand and seal of office.
Notary Public, in and for
Taylor County, Texas
CERTIFICATE OF SERVICE
On the 20th day of May, 1982, a true
and correct copy of the above and fore-
going was forwarded to opposing counsel
in a manner consistent with the require-
ments of law.
STAN BROWN

DETERMINING NEEDS OF FEMALE OFFENDERS
(0 The Harris County Adult Probation Depmment has been
attempting to assess the needs of female offendm in the
Houston area. The Department wisely, in our opinion, made a
special effort to obtain the input of the criminal defense
bar. Carolyn Clause Garcia of the Harris County Criminal Bar
Association coordinnted the response to the Department's
inquiry. Our thanks to her for sharing this Harris County
effort with US. Any ideas and suggestions should be forwarded
to Carolyn Garcia, Lawyer, 2038 Lexington Avenue, Houston,
TX 77098-Ed.)
The Harris County Adult Probation Department is assessing
the specialized needs of female offenders in Harris County. We
are developing programs for female offenders to reduce both
revocations and initial pmon commitments of this special
needs group.
Determining the specialized needs of the female offender is
our objective. Currently, we are surveying the individual actors
ip the criminal justlce process, i.e., the Prosecutor, the Defense
Attorney, the Defendant, the Judge and the Probation Officer,
each of whom sees the needs from a different perspective. Your
assistance and input would greatly enhance the success of our
survey.
Specifically, we want to know what you see as the special
needs of female offenders. To this end, we would ask your co-
operation in answering the following questions thoughtfully,
and thoroughly.
1) What do you see as the special needs of the female offender?
2) What occupational and/or educational/training needs do
female offenders have?
3) What organic needs (i.e., health, drugs, alcohol, nutritional)
do female offenders have?
4) What life skill needs do female offenders have?
5) What specialized mental health needs do female offenders
have?
6) Are there specla1 legal needs that female offenders have?
7) What emergency interventions do female offenders need?
Need Help Researching a Case?
Do you need a law clerk? TCDLA
has the answer. Ron Conover (third year,
University of Texas School of Law) is
available for legal research and legal
clerical work for TCDLA members. His
fee is $lO/hour plus any expenses.
Mr. Conover was previously employed
with Burleson, Pate and Gibson in Dallas,
8) What specialized programs for female offenders would you
like to have available for stipulation into?
9) Do you have any further comments?
What follows is a listing of various services offered female
offenders in other julisdictions. Each column requires a
separate response.
Column A: Please check all those services you would like to
see available for female offenders in Harris County.
Column B: Please prioritize by rank order (i.e., 1,2,3,4) the
top five services needed by female offenders in
Hams County.
Column C: Please indicate how often, by percentage, (i.e.,
5%, 50%), you might use these services for female
offenders.
Types of Services Offered:
,
working under Phil Burleson and Dan
Guthrie m their criminal practice.
Ron is a member of Phi Delta Phi
legal fraternity, the American Bar Associ-
ation, and the State Bar of Texas, Stu-
dent Division.
Any interested members should con-
tact TCDLA at (5 12) 478-25 14.
A B C
(Check) (Rank) Percentage)
Restitution Center -- -
Residential Treatment Center - - -
Drug Abuse Counseling -- -
Alcohol Abuse Counseling - - -
Mental Health Counseling - - -
Family Counseling -- -
Financial Counseling -- -
Employment Training -- -
Vocational Trainmg -- -
Individual Therapy -- -
Child-Care Fac~lities -- -
Personal Health Training - - -
Emergency Shelters -- -
Parent Effectiveness Training - - -
Contract Services -- -
Volunteer Services -- -
Recreation -- -
Other -- -
February 1984/VOICEfor the Defense 45

Fc .
1
--
Thoughts From
Behind the Walls
1.
8
mv case was transferred to Dallas. So Mr.
Fh~erald quickly jumped on the trial
d subsmntial segmnt of correspondence court's error and asked The Court of
received by the VOICE each month eomerr Appeals to abare the appeal and remand
with a ram address aforna unit or axother the case back to trral court for further
of the T m Department of Corrections. proceedings. The Court of Appeals re-
In the past, most of this correspondence manded the case on October 14,1981.
hus appeared solely in rtts 'Zetrers to the A series of bench warrants had me
Editor" c01m of this jomL in the burning up the road between Nuntsville
belief that the vaica &om behind those and Dallas. The trial court had already
mlls shDUld notfall on deaf ears, we have heard my new found evidence and found
created this new departmenf for widwing good cause to enter it into the record. My
the scope of what we hope wig become a case was set aside very briefly, then reinmeaningfur
dialogue been those m- 8tated as it was before. By this time
gaged in tke pmcfice of criminal law and (1982), another witness was found that
OW Mpals,"in their essays, a&ks and added more evidence bv . mv . defense that
letters. -Ed. the decedent had a firearm.
After all the hearings were held, Mr.
FitzCeraM filed an "APPELLANTS SUP-
PLE~NTAL APPEAL BRIEF about
RE: MR. KERRY P. FITZGERALD, April 22, 1983. The District Attor-
ATTORNEY AND COUNS%LOR ney began asking for extensions gf time
AT LAW
for filing the State's Brief. I asbed Mr.
FitzGerald to include several grounds of
Dear %tot:
error for the Court of Appeals to consider
'Ibis is to let other people know that 1 and he asked the Court of Appeals for
have one of the fmest ''court appointed leave to amend the brief on appeal-and it
attorney's on my appeal that indigency was allowed. Therefere, on October 23,
can buy." He is Mr. Kerry P. EitzGefald, 1983, an Amended Supplemental brief
of Dallas, Texas, and unlike the run-of- was fded in the Court of Appeals with
the-mill that a lot of TDCprisoners seem these contentions:
to be fussing about for not throwing 1. GROUND OF ERROR MJMenough
punch into cases, Mr. FitzGerald BER ONE: The trfal court abused
has been on my appeal for about five years. its discretion in overruling Appel-
We filed the Arst appeal brief on Janu- lant's Motion for New Trial based
ary 18, 1980, based on newly discovered upon newly discovered evidence, in
evidence. I was tried for first degreemur- violation of Appellant's constituder,
convicted and sentenced to life. I did tional right to due prooess of law.
not find any witnesses to the incident, a 2. GROUNDS OF ERROR NUMbeer
joint shooting,until after my trial. BERS TRTO AND THREE: The
I gave notice of appeal and the cam court committed reversible/fundawas
transferred to the Court of Criminal
-
mental error in refixsing Appellant's
Appeals. The trial court decided to hear reauested instruction on voluntary
the testimony of two of my newly dis- m&~au~hter.
covered witnessess who said they saw the 3. GROUND OF ERROR NUMdecedent
with a pistol on the day in ques- BER FOUR: The trral court comtion
(12-22-78). However, the trial court mitted fundamental error in apply-
(Criminal District Court No. 1, Dallas ioa the law of self defense to the
County) did not set the sentence aside, as facts, as it omitted all reference to
is required by law, and did not properly "APPARENT DANGER."
hear the evidence, making it improperly 4. GROUNDS OF ERROR NUMbefore
the Court of Appeals. By this time BERS FIVE AND SIX: The trial
court commtt'ted reversibleffunda.
mental error when the court demed
or prevented the Defendant to be
present when a juror was questioned
in the Judge's Chambers. (This and
the following two ground of errors
are the ones I persuaded Mr. Fitz-
Gerald to include inthe brief, which
would never have been admitted if
the District Attorney had not shillyshallied
around asking for more
time to file the State's Brief).
5. GROUNDS OF ERROR NUM-
BERS SIX AND SEVEN: me trial
court committed revarsibleffwdamental
error when it did not apply
the law to resolve voluntarine~s of
a statement, nor was the jury instructed
to the law according to the
rules on improperly obtained evidence.
6. GROUND OF ERROR NUM-
BER EIGHT: The trial court erred
in restricting Appellant's ri&t to
self defense when it did not instnict
the jury on the law of the right to
defend against multipIe assailants,
All told. Mr. PitzGeiald has Red three
(3) separate appeal briefs in my behalf*
numerous motions, including the one by
which my case was remanded, and he is
46 VOICEfor the Dt.fense/Eebruary 1984

"johnny-on-thespot" in answering my partmat of Cotrwtions.
fruitless in respect to cases after Sept.
letters to him. I write him a letter on the I, along witb three other inmates, have 1981.
average of one each week, and sometimes initiated a Civil Rights ac8on pursuant to I was arrested on November 6,1982,
more.
42 U.S.C. sec. 1983 challenging this un- for the poss~mion of a sytinge that had
I know that I have put a tremendous lawful ptactice. (Stieh?, @t oL v. White, on it a quantity of controlled rmbstances
workload on my attorney andhmeprob- et al, H-83-4186.CA S.D. Tex.)
in penalty group (1) one of the Texas
ably irked the judges and justices to their Also, several TDC inmates have filed Controlled Substan-ce Act (i.e., hexoh,
limits, but from my standpoint 1 feel it motions far permissive joinder of party approx. LO mg).
necessary to let all parties know what I in a companion suit filed in the Eastern I as chwd with possession of a
have on my mind by hollering as loud District: Beasley, ee ol. v. Btelle, et oL, controlled substanoe and ev6ntually reabout
it as I can till I get noticed. I have TY-83226-CA.
ceived a 1 %yea sentence- ifi TDC. I h e
probably done myself more harm than As evidenced by the petition, it is un- known persons who were artested for the
mod because I would not take my attar- lawful for TDC to allow a death-row in- same offense and they went to a misdeney's
advice to he patient.
mate his first am&dment right to prate meanor ~ourt and received a fiqe of 82W.
I expect to win a reversal of my CM- tice and freely expras his religious beliefs, or tesg.
vicbon when the Court of Appeals decides while at the same time punish all other I know that prior to September 1,
on it. However, all the deIays that have inmates for seeking to expregs the identi- 19&1, the "possession of a qringe with
contributad to my extending my wait for cal religions conviction.
any quantity of a controlled subsace in
a decision has worhd in my interest more Michael Pullara, the attorney who penalty group 1 or 2 on it" was a class A
than it has hurt me, because as I I d be. represented the death-row inmate, has in- misdemeanor.
fore, the hstrict Attmey has ashd for formed me that he cannot represent the My question is, how does the present
extensions of time to respond to the "class" in the above mentioned actions statute differ from the previous statute?
appeal so many times that it gave me op- since his firm is now in the employ of Does a syringe still have to have same
portunity to find errors that were before TDC and it would be a "conflict of in- oontrdled substance on it before the
hidden. .- - -. .
terest." So, to date, the inmate-plaintiffs possession of a syrin~ - - becomes an of-
I just wanted to let everybody know without @omPeteat and qualified fense?
that I was appointed one of the very best lega1 representation.
I afn attempting to show the court of
attorney's for my appeal, and not because We do not feel that the tax paying criminal appeals that I should ha= been
I was told that my case was as citizens of this state should have to bear obarged under the 'kpecific" statute
"Kerry P. FitzGerald's Career Case." I've the burden C ~ and Y mecesW (4.07) rather than the "general" statute
never met an inmate that has rewived so litigation for redress of such obvious civil (4.04) af the Controlled Substance Act.
much attention, i.e., brief filing, motion Iights violations*
I have no outside help in this matter,
filii and letter writing, as Ihave been so I would M Y much aP~recia*e You I am an indigent and I have no family to
fortunate to receive.
letting me bow that you have received give me any type of assistance. I had al-
Hope you tell Mr. FitzCerald thaf I am this as I have been exPefienciW a lot of most beewe resigned to the fact that I
'. @at& for his assistancq, and that I have problems with my sending and would never receive any information on
. ~ d i m wnfidence d that he will bring legal, media, andspecial correspondence. the above subject.
this ship in and as be, with- Thank you for taking the time to read Your address gave me a ray of hope
out damage to his *'ca+eer*9 by me, my letter. Please know that any consid- that maybe someone in your association
we might not believeit if I tell him). eration you may give to making inquiry would cooadtx giving me the benefit of
I thank you for your time . . . and wish into this matter be gratb' appre- their expertise in law and answer these
you n pleasatit day. ciated.
questions for me.
Youn very sinc~relv, I will Iook fomatd to an answer from
Sinoerely,
Henry S. kiehl - you or someone in yol3.r association. I
Willard Barrett Wason,
TDC No. 270947 feel that I have been served a gross in-
No. 291032 A
P.O. B@x 32
justice and I need some more information
ARCH-PRIEST,
Huntsville Unit
before I can prove it
Holv Order dMelchizedek
Huntsville, TX 77348 I have foufid no ~onvictions for posses-
(8 ~t/;nal
Avone interested fn the petition and sion of drug paraphernalia since enact-
TDC-Ellis Unit, Rt. No. 11 the MSG confacf MI. Smith-Ed.) ment of the new Controlled Substances
Huntsvillle, Texas 77343
Act.
Dear Editor:
I wre you any snd all help or information
that you can give me will be
greatly appreciated.
R.S.V.P.
LeRoy K. Comer
No. 361729
Route 4, Box 1100
Rohffln, TX 77583
(a W BFslstanct: and/or cowespoptdence
should be sent direct fo dlr. Cbmer-Ed.)
-

I
ADOLPHUS HOTEL
1321 Commerce, Dallas
Registration 8:30 - 9:00
Program 9:00 - 12:OO; 1:00 - 5:00
AN IN-DEPTH SEMINAR ON THE NEW TEXAS DWI LAW
THE AGENDA: An overview of recent legislative changes; pretrial motions practices; scientific bases for challenging intoxi-
lyzer evidence; countering prosecution tactics; detoxing the intoxilyzer-cross-examining the stated expert
witnesses; motions and objections-view toward appeals; charging instruments; the punishment hearing and
sentencing alternatives; trial tactics and jury persuasion.
THE FACULTY: Speakers and instructors to include well-known criminal law practitioners such as: Charles Tessmer, Dallas;
Gerald Goldstein, San Antonio; Bob Gibbins, Austin; Ed Gray, Dallas; Ray Bass, Houston; Kerry P. Fitz-
Gerald, Dallas; Hon. J. Q. Warnick, Jr., Lubbock; Charles Butts, San Antonio; Randy Taylor, Dallas; Dr.
Ken Smith, Houston; Paul W. Leech, Grand Prairie; Carroll S. Weaver, Houston; Louis Dugas, Orange;
J. Gary Trichter, Houston.
REGISTRATION FEE:
REGISTRATION DEADLINE: March 30,1984
Preregistration: $75.00 (for those whose fee arrives onibefore March 30)
Regular Registration: $90.00 (for those whose fee arrives on or after April I. 1984, including registering
at the door.
Why preregister? (1) Discounted price; (2) You are assured of receiving printed materials at beginning of
seminar. For later registrations, printed materials will be distributed on first comeifirst
served basis. However, if materials are not available for all during seminar, they will be
mailed to you within two weeks after the seminar.
MAIL YOUR REGISTRATION NOW!
.................................................................................
,
TO: Texas Criminal Defense Lawyers Association
314 West 11th. Suite 315
Austin, TX 78701
Be sore to include your $75registration fee
Name Address
, --
Phone No. Current occupation
Preregistration fee must be received on/before March 30, 1984. Fee is $90 on or after April 1, 1984.