DOCI(ETCALL

March/April1995 A Publication of Harris County Criminal Lawyers Association

"To achieve law
people mustbe
In Jail Call 222 - BAIL
That's ~ ~ ~ - ~ ~ 4 5
BurnsBailBonds
? ~ ~ eued ~ 4Utee 1971
224-0305
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MARCH/APRIL 19'
HCClA
Officers &Directors
1994-1995
President .........................JimSkelton
President.Elect .............. .GeorgePamham
VicePresident ................MarkA. Goldberg
Treasurer............. ....DickWheelan
Secretary ....................KennethW. Smith
ImmediatePastPresident........ ..DanCogdell
ChairmanoftheBoard ...LloydW. Oliver
Directors:
LorenA. Detamore
JosephA. Porto
PaulSt. John
Danny Easterling
Wayne Heller
ClydeWilliams
Judith Martin Prince
WB.Bennie House, Jr.
J.Charles Whitfield
John E. Crow
HarryA. Loftus, Jr.
Jonathan Munier
WillOutlaw
MosesM. Sanchez
Winston E. Cochran, Jr.
PastPresidents 1971-1994
C.Anthony Friloux (1972-1973)
StuartKinard (1973-1974)
GeorgeLuquette (1974-1975)
MarvinO. Teague (1975-1976)
DickDeGuerin (1976-1977)
W. B. "Bennie"House, Jr. (1977-1978)
David R. Bires (1978-1979)
Woody Densen (1979-1980)
WillGray (1980-1981)
EdwardA. Mallett (1981-1982)
Carolyn Garcia (1982-1983)
JackB. Zimmermann (1983-1984)
Clyde Williams (1984-1985)
Robert Pelton (1985-1986)
Candelario Elizondo (1986-1987)
Allen C. Isbell (1987-1988)
DavidMitcham (1988-1989)
JimE. Lavine (1989-1990)
RickBrass (1990-1991)
MaryE. Conn (1991-1992)
KentA. Schaffer (1992-1993)
Dan Cogdell (1993-1994)
President'sClub
David Cunningham
KentA. Schaffer
DocketCall
Editor ..........................Allen C. Isbell
AssociateEditor .................RobertPelion
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DOCKETCALL March/April1995
Contellts
...
Fromthe President ...........................................2
TopTen ReasonsAttorneysAre Sanctioned.........................4
FirstCourtofAppeals- SignificantDecisions .....................4
NewSpecialIssueinCapitalTrialsRecreatesthe Pre-Furman Problem.....6
Hearsay....................................................7
ToAchieveLaw and Oder,PeopleMustBeChanged .................8
UpdateonCriminalAppealsRecentOpinion ......................11
"ExParteCrispRevisited" ....................................17
Special to the DocketCall .....................................18
LET'S HEAR FROM YOU!
CONTINUINGLEGALEDUCATION
WEDNESDAYAPPELLATEUPDATES
301 SanJacinto
12:00noon, 177thDistrictCourt01:00MCLE
April13,1995
May11.1995
HCCLABoardMeeting,Thursdaynoon, ScanlanBldg.,
405Main, 2ndfloorconference
April20.1995
May18,1995
HCCLALuncheonMeeting
Treebeard'satTheChurch, 1117Texas, 2ndfl. churchaud.
12:00noonThursday.
April6-8, 1995 WomenAsProfessionalsWithintheCriminalJusticeSystem
- Sponsoredby UniversityofHouston- Downtown
atWestChaseHilton,
9999Westheimer, Houston77042.
Call(713) 221-8000for information.
April27-29.1995 .FifthAnnualLaw& AllThatJazzSeminar
NewOrleans,LA
Call(504) 387-3261 forinformation.
June11-24,1995
July16-29,1995
1995TrialPracticeInstitutes
TheNationalCriminalDefenseCollege,
c/oMerccrLaw School,
Macon, GA 31207
Phone: (912)746-4151 for information.
OfficeForRent
Free Parking, ClimateControl, Closeto Courts, EasyAccessto Freeways,
AllAmenities. ContactAllen @ 520-6333
May"Hearsay"Workshop
"[flur Constitution is in actual operation: everything appears to promise that
it will stand: but in this world nothing iscertain but death and taxes."
BENJAMIN FRANKLIN, LETTERTO JEAN BAPTISTE LERoY, NOVEMBER 13, 1789.
g-romthe ..resident
BY JIM SKELTON
DRUG OFFENSES
TEXAS HEALTH AND SAFETY CODE
PenaltyGroup1(Section481.101):
DeliverytoaMinor(48].]22)F-2
ManufactureIDeliverless than 1gram.
(48LlI2)F-4
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver 1-4grams.
(48LlI2)F-2
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver4-200grams.
(481.112)F-I
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver200-400grams.
(48lJ12)
Possession with intent to Manufacture I
Deliver 10-99orlife afine upto$100,000
Manufacture I Deliver 400 grams or more.
(48LlI2)
Possession with intent to Manufacture I
Deliver 15-99orlife afineupto$250,000
Possessionlessthan l gram. (481.115)
F-4
Possession 1-4grams.(481.115)F-3
Possession4-200grams.(48].115)F-2
Possession200-400grams.(481.115)
F-I
Possession400gramsormore.
(481.115) 10-99 or life a fine up to
$100,000
PenaltyGroup2(Section481.103):
DeliverytoaMinor. (481.122)F-2
ManufactureIDeliverlessthan I gram.
(481.113)F-4
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver1-4grams.
(481.113)F-2
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver4-200grams.
(481.113)F-I
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver200-400grams.
(481.113)
Possession with intent to Manufacture I
Deliver
10-99orlifeandafine up to $100,000
Manufacture I Deliver 400 grams or
more.(481.113)
Possession with intent to Manufacture I
Deliver
15-99orlifeandafine upto$250,000
Possessionlessthan 1gram.(481.116)
F-4
Possession 1-4grams.(481.116)F-3
Possession4-400grams.(481.1l6)F-2
Possession400gramsormore.
(481.116)5-99orlifeandafine up to$50,000
PenaltyGroup3(Section481.1(4):
Deliveryto aMinor.(481.122)F-2
Manufacture I Deliver Jess than 28 grams.
(481.1l4)F-4
Possession with intent to Manufacture I
Deliver
ManufactureIDeliver28-200.(481.114)
F-2
Possession with intent to Manufacture
Deliver
ManufactureIDeliver200-400grams.
(481.114)F-I
Possession with intent to Manufacture
Deliver
Manufacture I Deliver 400 grams or
more.(481.114)
Possession withintentto
ManufactureIDeliver 10-99 orlife and afine
upto $100,000
Possessionlessthan28grams.
(481.117)M-A
Possession28-200grams.(481.117)F-3
Possession200-400grams.(481.117)
F-2
Possession400gramsormore.
(481.117)5-99orlifeandafine up to
$50,000
PenaltyGroup4(Section481.105):
DeliverytoaMinor.(481.122)F-2
grams.(481.114)F-4
PossessionwithintenttoManufactureI Deliver
ManufactureI Deliver28-200.(481.114)
F-2
PossessionwithintenttoManufacture/Deliver
ManufactureI Deliver200-400grams.
(481.114)F-l
PossessionwithintenttoManufacture/Deliver
Manufacture Deliver 400 grams or
more.(481.114)
PossessionwithintenttoManufacture/Deliver
10-99
orlifeandafineupto$100,000
Possessionlessthan28grams.
(481.118)M-B
Possession28-200grams.(481.118)F-3
Possession200-400grams.(481.118)
F-2
Possession400gramsormore.
(481.118)5-99orlifeandafine upto
$SO,OOO
MarijuanaPenalties:
Deliver 114 ounce or less (no remunera-
tion).(481.120)M-B
Deliver 114 ounce or less (remunera-
tion).(481.120)M-A
Deliver 114 ounce- Sibs. (481.120)F-4
Deliver5-50Ibs. (48L.120)F-2
Deliver50-2000Ibs.(481.120)F-I
Deliver2000Ibsormore.(481.120)
10-99orlifeandafine upto$100,000
Possession2ouncesorless.(481.12l)
M-B
Possession2-4ounces. (481.121)M-A
Possession4ounces- 5Ibs. (481.121)
F-4
PossessionS-SOIbs. (481.121)F-3
Possession50-2,000lbs. (481.121)F-2
Possession2,000Ibsormore.
(481.121)S-99orlife afineupto
$50,000
Paraphernalia Peualties:
Delivertosomeoneyoungerthan 18.
(481.125)F-3
Manufacture/Deliver. (481.l25)M-A
Manufacture/Deliver(oneprior).
(481.12S)F-3
Possession.(481.12S)M-C
Possession(oneprior). (481.125)M-B
GeneralPenalties
Deliver/manufacture/possession
analogue.(481.123)
Delivertominor,anyamount.
(481.122)F-2
Deliver/manufacturesimulated
controlled
substance.(482.002)F-4
Deliver/offertodeliverdangerousdrug
(Adangerousdrugisonenotlistedin
schedulesorpenaltygroups and isunsafe
for self-medication).(483.042)F-4
Diversionofcontrolledsubstance,
propertyorplant.(481.131)F-4
Falsificationofdrugtestresults(use).
(481.l33)M-B
(manufactureordeliver).(481.133)M-A
Fraud.(481.129)
Distributesas aregistrantScheduleIor
11.(48l.l 29)F-2
Distributesas aregistrantScheduleIII
orIV(481.129)F-3
DistributesasaregistrantScheduleV
(481.129)M-A
Distributesdevisesforfalse labels.
(481.I29)M-ADeliversfalse
prescriptionScheduleII.(48L129)F-2
Deliversfalse prescriptionScheduleIII,
IV, orV(481.129)F-3
Possessfalse prescriptionScheduleII
orIII.(481.l29)F-4
Possessfalse prescriptionScheduleIV
orV(481.129)M-B
Illegalexpenditure/investment.
(481.126)F-I
InhalantOffenses:
Deliverglue/aerosolpaintto minor.
{485.033)F-4
(aglueorpaintpermit).(485.033)M-B
(asalestax permitand nopriors).
(485.033)M-A
Failureto postsign.{485.034)M-C
Manufacture/Deliver.(485.032)M-A
Paraphernalia. (484.034)M-B
(withintentto deliver/manufacture).
(484.034)M-A
Possessionanduse (glue/paint).
(485.031)M-B
Manufacturedangerous drug. (483.043)
F-4
Possessiondangerousdrug. (483.041)
M-B
(oneprior}.(483.04I)M-A
Prescriptionoffenses:
Failuretomaintainrecords.(483.049)
M-B
(withpriors).(483.049)M-A
Failuretoretainprescription.(483.046)
M-B
(withpriors). (483.046)M-A
Forgingoralteringprescription.
(483.04S)M-B
(withpriors). (483.04S)M-A
Refillingprescriptionwithout
authorization). (483.04S)M-B
(withpriors). (483.045)M-A
Refusingtopermitinspections.
(483.0S0)M-B
(withpriors).(483.050)M-A
Unauthorizedcommunicationof
prescription. (483.048)M-B
(withpriors). (483.048)M-A
Usingorrevealingtradesecrets.
(483.0S1)M-B
(withpriors). (483.051)M-A
Violationofotherprovisions.
C483.052)M-B
(withpriors). (483.052)M-A
ProhibitedSubstancesinCorrection
facilityoronPropertyofTDCJ(section
38.11 Penal Code)F-3
UnauthorizedDisclosureof
Information.(481.127)F-4
Unlawfultransferlreceiptchemical
laboratoryapparatus. (481.082)F-3
Unlawfultransfer/receiptchemical
precursor. (481.079)F-3

HOllston Corporate Recycling

(;ouncil'sExpo '9,Wednesday. AIJril 19

J. \V. Marriol Ilote! &
ConferellceCenter
hi/' illjii/'ll/{f/i(l/I ('(1/1
713-622-9593
8. Creating eXpecta.
tlonsofresultS.
9. Fail1ng to prepareadequately.
10. Trustaccountviolations.
Mr. McCormack's article gives sage
advice as to howonemay protectone-
selfagainstthese common complaints.
Itisworth re-reading.
IIFIRST COURT
Mooney v. State, No. 01-93-312-Cr,
11/10/94,by HustonDunn,J.
LOTTERY TICKET FORGER RUNS
OUT OF LUCK. NEW SUFFICIENCY
OF THE EVIDENCE STANDARD
APPLIED TO DO TO HIM A SECOND
TIMEONAPPEALWHATTHELOWER
COURTDIDTO HIMTHEFIRSTTIME
ATTRIAL.
There was a time when, alas, you could
present an obviously altered lottery ticket
with pure ofheart (and empty of mind),
and ifyougotcaught,couldarguethatthe
circumstances do not rebut every reason-
able hypothesis of innocence. (By your
definition, any hypothesis of innocence
was reasonable). Those times are long
sincegone.
Everybody knows that in Geesa v. State,
820 S.W.2d 154 (Tex. Crim. App. 1991)
the Court of Criminal Appeals started
requiring ajury instruction on reasonable
doubt.Whatmostpeoplestill donotknow
isthatthis decisionchangedthemethodof
measuring the sufficiency ofthe evidence
on appeal. The standard is still the same:
couldarational trieroffactfind everyele-
ment of the offense from the record
beyondareasonabledoubt.Whatisdiffer-
entis themethod:TheStateneednolonger
rebutevery reasonablehypothesisofinno-
cenceraisedbytheevidence.Thenewtest:
Wherethereis smoke, there is fire. People
aregettingburnedbythisnew standard.
The Court of Appeals notes that in all
forgery cases, theMEREpresentation ofa
forged instrumentis NOT enoughto show
intentto defraudorharm, the key inevery
case.HOWEVER,unlikechecksandother
byHenryL.
negotiable instruments, there is never a
goodreasontoalteralotteryticket.Where
the forger does a piss poorjob ofaltering
the lottery ticket itself: i.e., old numbers
glued on top of old numbers, obvious
surgery, tear stains and funny looking
sweatontheticket, itcan bepresumedby
the trieroffact that the defendantKNEW
the ticketwas altered.
No. 01-93-1096-Cr,
11110194, byHuston Dunn,J.
DEFENDANT WINS AND LOSES AT
THESAMETIME.INSUFFICIENTEVI-
DENCE TO SUPPORT AUTO THEFT,
BUT STATE DRIVES AWAY WITH A
CONVICTIONANYWAY.
Defendantwascharged with auto theftand
unauthorized use ofa motor vehicle. Trial
court finds defendant guilty of auto theft.
Onappeal,everybodyagreesthattheState's
evidence on the defendant's INTENT TO
DEPRIVE THE OWNER ofthe auto was
WEAK. This is, after all, what separates
auto theft from unauthorized use (aka Joy
Riding).Convictionreversedonthebasisof
insufficientevidence.
BUT, sinceBigby v. State. 865 S.W.2d26
(Tex. Crim. App. 1993) the Courts of
Appeals have the authority to REFORM
the judgment to lesser included offenses
for which the evidence was sufficient.
(Havinggivenuponreforming theclients,
theCourtswill nowsettleon reformingthe
judgments.)
Mr. Flores walks awaywithajudgmentof
conviction for authorized use of a motor
vehicle. Caseremandedfor anew punish-
menthearingonly.
4DOCKETCALL MARCH/APRIL1995
OF APPEALS
Burkholder
FOURTEENTH COURT OF APPEALS
SIGNIFICANTDECISIONS
by Henry L. Burkholder
Jackson v. State, No. 14-94-427-Cr,
12/1/94,by Brown,1.
WATCH HOW YOU CROSS EXAMINE
THOSEWITNESSES. YOU MAY OPEN
THE DOOR THE WRONG WAY, AND
GETSMACKEDWHEREITHURTS.
Defendant is charged with sexual assault
on alittle child. StateputsontypicalFirst
Adult Out Cry. In this case, it was father
telling thejuryhow thecomplainantcame
to him, and told horrible things about the
defendant. You can pretty much guess
what.
Defense attorney DESTROYS credibility
ofcomplainant by having father ADMIT
thatcomplainantappearedNERVOUS and
SCARED to report this offense. The only
logical conclusion: the little you know
whatis LYING. Right?
WRONG! Father was now permitted to
testify that complainant reported to him
that the defendant THREATENED TO
KILL HER. This statement of the com-
plainant, offered through the testimony of
thefather,wasadmissibletoEXPLAINthe
complainant'sstatementofmind,andrebut
thisinferencethatshewasnervousbecause
shewaslying.
MORAL: Be careful on how you cross
examine witnesses to show strange con-
duct that is arguable consistentwith them
being liars. Since strange behavior, e.g.
nervousness, shiftieeyeballing, seizuresin
thepresenceofthedefendant, may also be
MARCH/APRIL 1995
explained bythe'Stateas evidenceofyour
clienthaving saidunfortunateandnon cir-
cumspect things to them (i.e. I AM
GOINGTO KILLYOUIFYOU RAT ON
ME. Thatsortofstuff.)
Planyourcrosswiththis in mind.
Fortenberry v. State, No. 14-94-043-Cr,
12/1194, byEllis,J.
POINTS ARE NOT DEDUCTED FOR
FAILURE. HALF AN AGGRAVATED
ROBBERY IS STILLANAGGRAVATED
ROBBERY.
Defendant puts knife to complainant's
throat, requests money. Before value
exchanges hands, cops arrive. Defendant
quotedas saying"Shit,cop"(slipop. at2)
beforestealingawayintothenight.Caught
andprosecuted.
Defendant raises novel Latin legal argu-
menton appeal: Crimus agg-robbus inter-
ruptus non constitutus a no-no. Court of
Appeals correct observes that the robbery
statuteis structure as to NOT REWARD a
halfassedattempt.Thecrimeofrobberyis
completed when unlawful force is used
during a theft or attempted theft.
Defendant loses at trial and on appeal
without ever knowing justhow much the
complainanthadin herpurse.
POSITION
AVAILABLE
Criminal Law -
Galleria Area, nine lawyer, gen-
eral practice firm seeks attorney
for chief of growing criminal law
section of one, to handle varied
criminal docket. Good reputa-
tion, Harris County misde-
meanor and felony criminal trial
and private practice experience
required. Former ADA, AUSA,
and portable business a plus.
Salary range dependent on
qualifications. All responses will
be kept confidential. Mail
: resume to P.O. Box 22773,
I Houston, TX 77027
DOCKETCALL5
NEW SPECIAL ISSUE IN
CAPITAL TRIALS RECREATES
THE PRE- FURMAN PROBLEM
BY ALLEN C. ISBELL
T
he statutory special issue in
VA.C.C.P., ARTICLE 37.071,
SECTION 2.(e) unconstitutional
under the Eighth and Fourteenth Amend-
ments to the United States constitution
because it invites the open-ended discre-
tion condemned by the United States
Supreme Court in Furman v. Georgia, 408
u.s. 238 (1972). (Trans. 28-32, 111)
In Furman v. Georgia, supra, the United
States Supreme Court struck down capital
punishment because it was being adminis-
tered in an arbitrary and inconsistent man-
ner. Particularly, the Court condemned the
open-ended, unstructured discretion given
to capital sentencing juries. See also
Gregg v. Georgia, 428 U.S. 153 (1976)
(Opinion of Stewart, Powell, and Stevens,
JJ); Spaziano v. Florida. 468 U.S. 447,
460,464 (1984).
Responding to the United States Supreme
Court's decision in Penry v. Lynaugh, 492
U.S 302 (1989), the Texas legislature enact-
ed a new capital sentencing scheme. The
legislature eliminated the previous "deliber-
ateness" special issue, and it added a new
special issue in V . A.c.c.P. Article 37.071
Section 2.(e):
Whether, taking into consideration all of
the evidence, including the circumstances
of the offense, the defendant's character
and background, and the personal moral
culpability of the defendant, there is a suf-
ficient mitigating circumstance or circum-
stances to warrant that a sentence of life
imprisonment rather than a death sentence
be imposed.
This open-ended, unstructured capital
sentencing instruction requires what
Furman v. Georgia. supra condemned. See
Pemy v. Lynaugh, supra., [Scalia, J., dis-
senting, joined by Rehnquist, C.J., White,
J., and Kennedy, J.]; Graham v. Collins_
U.S. , 113 S. Ct. 892 (1993)
[Thomas, J., concurringl;Graham v.
Collins U.S., 113 S. Ct. 892, (1993)
[Thomas, J., concurring].
The statutory special issue does not
have clear parameters that objectively
guide the jury in imposing the death sen-
tence and that allow a rational appellate
review of the process by which the jury
imposed the death sentence. See Walton v.
Arizona. U.S., 110 S. Ct. 3047 (1990), cit-
ing Godfrey v. Georgia, 446 U.S. 420
(1980). Therefore, the current capital sen-
tencing scheme is infected with the same
constitutional harm addressed in Furman v.
Georgia, supra.
6 DOCKET CALL
MARCH/APRIL 1995
Hearsay
BY ALLEN C. ISBElL
Willie Blackmon was inducted into the Texas
A & M Athletic Hall of Fame in recognition of
his outstanding athletic achievements. He
held or co-held 16 school records in ten events
during his four years at A & M. Mayor
Robert C. Lanier proclaimed Friday, October
21, 1994, as Willie Blackmon Day.
The November elections confounded all
"accepted wisdom" of Judicial politics. Seems
it did not matter whether the C Club endorsed,
or the Houston Bar Association or any other
group endorsed, or the local newspapers.
ARCH/APRIL 1995
What mattered was the "R" after one's name!
Cindy Henley got an "N.G." on a DWI. Client
blew a .I68! Thanks to Robert J. Fickman
for this bit of news. Did you know that
Fickman's young son has a Hollywood con-
tract. Dad must be his "p.r. " person and
agent.
Jeffrey Gelb is a Master Chess player. Ex-
prez Mary Conn hit a home-run. State
charged client with burglary with intent to
commit rape; jury said it was only a class A
assault! Kenneth Sparks is board certified
now in Personal Injury Law, as well as
Criminal Law.
The old year closed and the new year began
with some good results for our members. In
December, Joseph Rumbaut "saved" one by
a Motion to Suppress. In January, Rumbaut
got an N.O. for the cousin of the man he had
saved earlier. The December Champion had
to be David Cunningham who had three
Motions to Suppress granted in federal court
in that month. Also, Cunningham, Richard
Frankoff and Robert Fickman teamed up
successfully, persuading Judge Norman
Black that the police cannot create their own
"exigent circumstances" to justify a search.
Joe Porto got an "N.G." on a multi-defendant
federal drug conspiracy [only one to win].
In the "How They Do It In Another World
Department," Montgomery County Courts
routinely make quarterly polygraphs a condi-
tion of probation. I,awyer Jimmy Price in
Conroe is poised to attack that as a legitimate
condition of probation. His client may be
revoked because he "missed his polygraph
appointment." Interesting issue: does being
on probation require one to forfeit his Fifth
Amendment rights during his probation
years? What do you do with someone who
"fails" the polygraph? By the way, it is at a
probationer's expense [$65 a polygraph). The
polygraph is unreliable, especially in the
hands of an "expert" who charges only
$65.00. At least, that is what my polygraph
expert tells me. He charges $500 a poly-
graph!
R. Todd Bennett has become a "free-world"
lawyer. Offices at 333 Clay Street, Suite
3830, telephone 752-2728.
Wedding Bells: Jules Laird and Denise
Oncken . . . Roxane Martinez and Juan
Martinez ... Other weD-known courthouse
personalities soon to follow!
If you have "missed" Walter Boyd, he says the
Harris County Lawyers have finally driven
him out of town. Someone spotted him in
Beeville, Texas, lurking around the high
school. He claims to be teaching classes.
When you have little else to do, think of the
answers to these questions: If love is blind,
why is lingerie so popular? Why are there
interstate highways in Hawaii? Why isn't
phonetic spelled the way it sounds? Why are
there flotation devices under plane seats
instead of parachutes? Why is it that when
you are driving and looking for an address,
you turn down the volume on the radio?

To ACHIEVE LAW &ORDER,
PEOPLE MUST BE CHANGED
BY CAROL VANCE, FORMER DISTRICT AnORNEY, HARRIS COUNTY, TEXAS
[Editor's Note: Recently, Carol Vance spoke at a monthly luncheon for the Harris County Criminal Lawyers
Association. He is a senior partner with a major Texasfirm, Bracewell and Patterson, he is chairman ofthe Texas
Department of Criminal Justice Board of Directors, and he was the highly respected District Attorney for Harris
County for many years. The following are excerpts from his speech prepared for the occasion.]
,'In today's climate, more and more
people are asking why don't
we lock these criminals up and
throwaway the key? In view of our fear of
criminal violence, this is not a surprising
reaction. However, there is a second ques-
tion the public should be asking with equal
passion, and that is - what are you doing
with those you have locked up so they
won't victimize us any moreT ....
"Nationally, the housing of prisoners costs
over $20 billion annually. To house one
prisoner one year exceeds $20,000. It
costs $1,000,000 to build a single prison
bed and keep a prisoner 30 years. Texas is
efficient. This only costs us $500,000. To
tum one solitary life around saves a for-
tune, not to mention the future victims that
lie in that habitual inmate's path.
Therefore, anyone interested in law and
order should demand we do everything
possible to graduate law-abiding and
employable people from our probation and
prison ranks." ....
"We are in a crisis. The U.S. incarcerates
far more people per capita than any other
nation. In Texas alone we will have
155,000 prison beds by year end, exceeded
only by Russia and China. What is more
disturbing is that Texas has over 600,000
males in prison, on a parole or on proba-
tion. Because we have 9,000,000 males in
the state, this is one out of every fifteen
now under sentence for a serious crime."
"In trying to change lives, we must take a
close look at the real cause. The cause is a
combination of the home breaking down
and the influences of today's culture. Root
causes are not poverty, drugs, or unem-
ployment. These things, like crime, are the
end result. The lack of fathers, family sup-
port and teenage mothers, combined with
other negative influences including sex and
violence in television, movies, and rock
music, gangs, pornography, drugs, alco-
hoi-THESE CAUSE CRIME ....But no
reasonable person can argue that the lack
of a caring and concerned mother and
father is the one biggest contributor to
crime, poverty, and addiction. For exam-
ple, only 10% of children of a two parent
family lives below the poverty line. This
compares to 38% with single mothers who
are divorced and rises to 66% in homes of
mothers who never married. Median
income of a two parent family in $43,500.
It is $17,000 and $9,2000 for the previous-
ly married and the never married mothers.
The American traditional home is eroding.
For example, Black children had about a
90% chance in having two parents at home
in 1900. This declined to 50% by 1970,
and now only 15% have a mother and
father at home. Thus it is not surprising
that lout of 4 black males will be incar-
cerated by the age of 25 in the United
States. And, this upward trend applies to
all races in the U.S.. Today, 30% of all
births in America are illegitimate, 22% of
all Caucasian children are born to an
unmarried mother. If you don't accept this
negative proof, look on the positive side.
Most Oriental and Jewish homes are intact,
and this results in very few prisoners pro-
portionately. The poor Oriental immigrant
is your future valedictorian."
"... First, let's look at what kind of person
inhabits our prisons. To begin with, most
prisoners are male - roughly 95%. This
male is 30 years old, has a drug or alcohol
addiction (an estimated 80%), has an I.Q.
of 90, dropped out of school before the
10th grade, tests out at a 6th grade level,
and has little work skills or employment
history. Around 40% are functionally illit-
erate. As we look beneath the surface,
there are major personality problems.
Most have no vision for the future. Many
have low self-esteem and difficulty relating
to other people. Most feel the world and
"the system" are against them. they often
cannot deal with anger, harbor grudges
against others in their past, are lonely, are
cynical and don't trust other people. Now
the overburdened criminal justice system is
expected to pull off a miracle by correcting
these almost overwhelming personality
gaps that have their roots from early child-
hood."
"The good news is that many of these peo-
ple can and will change if we are smart.
Several principles emerge if we are to be
successful. It is going to take more than
education and vocational training. We
must deal with the whole person. We must
impart a better way of life. It will take
more than our professional community to
get the job done. It will take a communi-
ty effort with dedicated volunteers. And it
8 DOCKET CALL MARCH/APRIL 1995
will take alotofoneon oneeffortboth in
tenus ofrole modeling and personal dis-
cussion and confrontation...In short, our
criminal justice system needs to impart a
vision for life, selfesteem, ability to for-
give, ability to relateto andrespectothers,
astructure to one'slife, arealistic view of
oneself, common manners, andrespectfor
the lawand authority."
"InTexas we are trying to do something..
. Our approach is not some do gooder,
handout. feel sorry for them kindofthing.
Itis pragmatic and practical with the goal
that one learn to live acrime free life and
be aproductive citizen. Some ofournew
initiativesare:
1. New ConceptIn sentencing.
To start with, the Texas legislature,
after a lengthy study, overhauled the
lawas appliesto propertycrimesand
drug possessioncases. Texascreated
anew4thdegreefelony thatkeepsthe
defendant under the control of the
sentencingjudgeand the localproba-
tion department. ..Atthe sametime,
Texas has increased greatly the time
that violent offenders will have to
serve. For example, in the future
offenders receiving a 40 year sen-
t n ~ will serve 24 years. Capital
offenders receiving a life sentence
will serve40yearsactualtime. Texas
isundergoinga$2 billiondollarcon-
struction program just to meet the
increaseintimeviolentoffenderswill
spendinprison.
2. Task Force on Recidivism and
IndividualizedTreatmentPrograms.
Within TDCJ, and with the help of
outside experts, we have an ongoing
task force to examine how we can
best deliver our program services to
each individual offenderfrom proba-
tion through parole...In a nutshell,
all of the program people and the
warden get together and determine
how long that individual inmate will
be there, what he needs, and how to
get the job done through the
resources athandbeforethatindivid-
ual is released.
3. New Direction For Our Prison
SchoolSystem.
Lastyearprisonschools,theWindham
School System, gave out about 4,000
high school diplomas and has over
50,000inmatesenrolledin G.E.D. pro-
grams. We now are placing a great
emphasisonliteracyas we donotwant
any illiterates coming out of prison.
Equally as important, Windham has
introduceda150hour"Charge"course
on various aspects of living. This
includes instructions on dealing with
angerandotheremotionalproblems."
"Prisonsshouldnotbesoft,butprisons
mustnotdehumanize. Like acomput-
er, you getout what you putin. Ifthe
product goes in rough, then it needs
serious editing. If we leave a human
"PRISONS SHOULD NOT
BE SOFT, BUT PRISONS
MUST NOT DEHUMANIZE."
with thecapacityto commitcrimes in
his same state, we jeopardize future
victims. Yet often I hear that prisons
should be like dungeons with no
schools, no programs, and nothing
happening. Ifwe want to pile it on
future victims, let'sdonothing."
"We should not ignore the spiritual
sideofthe individual. Let's face it, if
someonewillbelievethattheGodwho
created the universe loves them, cares
aboutthem, andwillforgive them,this
fact alone will change their life. The
mostdramatic andlastingchangesthat
Ihave seenamong inmatesIpersonal-
ly knew was a result ofa conversion
experience. Butremember, these per-
sons also have to beequippedto get a
job and be drug free. Our chaplain
corpplaysacriticalroleinourprisons.
In addition to recruiting volunteers,
chaplainsdealwithsomeofthetough-
est inmate problems, including manic
depression, suicideattempts, deaths in
the family, and even unrest within a
prison. We haveonlyonechaplainper
1,000inmatesandneedmore. Icannot
begin to tell you the impact that over
100separateministries haveoninmate
life. Ministries like Bill Glass, Mike
Barber, and Chuck Colson's Prison
Fellowship carefully train volunteers
who so unselfishly give of them-
selves."
"In closing, we must take a compre-
hensive and holistic approach and use
every resource we can. Planning,
training, and coordination is essential
too. Futurecostsavingsareatstakein
agreatway. Forexample,if we were
totakeoneofournew 2,000 StateJail
facilities where apersonmightserve a
year injailand we reduced the recidi-
vism rate by 10%, the costsavingsfor
these 200 people who do not come
backforanotheryearis $3 million. If
eachofthese200personswouldspend
20moreyearsinprisonthroughoutthe
restofhis orherlife, then we save$60
million in future costs. Ifwe could
keep this same 10% improvement rate
for ten years, then the future saving is
now up to $600 million. Ofcourse,
this doesn't even count the unmeasur-
ablehumancostto future victims."
4. MassiveVolunteerEffort.
Texas now has 10,000 volunteers,
mostlyfrom Christianchurches,going
into our prisons on a regular basis to
do not only spiritual things like Bible
studies but also to conduct small
groupsessions,oneononementoring,
seminars, marital weekends (not con-
jugal visits) to strengthen the family,
and a host ofother things. Other vol-
unteers come from civic clubs and
industry.
5. DrugTreatmentEmphasis.
Texasisbuildingseveralnewfacilities
thatwill houseinmatefor an intensive
nine month drug and alcohol abuse
program.
6. ExtensiveWork ProgramsinPlace.
Although the public believes that all
that ourinmatesdo is to sitaroundin
air conditioned cells watching T.v.,
every able-bodied inmate works or
goes toschoolorboth. Our60indus-
tries sold $80million worth ofgoods
MARCH/APRIL1995 DOCKETCALL9
To Achieve Law &Order
- Continued from page 9
outsideagencieslastyear, notinclud-
ing our agriculture, cattle, and hog
operation. We make virtually every-
thingweusefrombedframes tocom-
modestomattressesto all the guard's
and prisoner's clothing. including
shoes. We sell furniture, stationery.
and a variety ofitems to schools and
governmental agencies. We repair
schoolbuses,domajorprison repairs
and build asmall building. Thus, we
keepourcostbelowthenationalaver-
ageat$15,000perannumperinmate.
The work helps prepare inmates for
civilian life, including developing
workhabits.
7. CommunityProjects - PublicWorks.
We havejustopened up several work
camps that housed inmates in tents
and temporary buildings to do park,
beach, and highway cleanup, as well
as somebuildingprojects.
8. PrisonOvercrowdingandOur
BuildingProgram.
With30,000inmatesawaitingtransfer
in overcrowdedcountyjails,ourcon-
struction department built 11,000
beds in six months at a cost ofabout
$15,000perbed. Wearebuildingour
State Jail beds at under $20,000 per
bed.
Perhapsthebestrecourseinthesystemare
thevolunteersandourcommunities. From
firsthand knowledge, a group ofus from
ourchurchregularlyvisitprisonersthatare
confined to single cells at a maximum
prison. This is tough duty but we keep
going back. Anotherexampleis the little
town in Snyder, in sparse West Texas,
where inmates painted the schools and
took on other civic work projects. The
community responded with volunteerpro-
gramsandrecentlyraisedover$150.000to
donate an all purposechapel to the prison
complete with classrooms and program
space.
UPDATE ON u
CRIMINAL JUSTICE
CENTER
I
have been asked by the Board ofDirectors to report to our membership the
results ofa meeting I attended concerning the construction ofthe new Harris
CountyCriminal Justice Center. On OctoberOS, 1994, I was invited by Roger
Bridgewater, one ofourmembers and the Houston BarAssociation representative
on the Steeringand PlanningCommitteefor this constructionproject. Rogerinvit-
ed 17 differentpresidentsorchairpersonsfrom various BarAssociations through-
out Harris County and I attended as the chair of the Houston Bar Association
Criminal Law & Procedure Section. Also attending were Don Primosic from the
county engineering office and a representative from the architectural finn that is
designing the project. They stated previous meetings on this matterhad been held
with the Judges, DistrictAttorney's Office and the Clerk's Office. Thebudgetthat
Harris Countyis dealing withonthis facility is $65 million dollars.
Theyreportedthattheprojectisnowin theschematicdesignphaseandthatafter
alengthydesign,developmentandpennitphasethatconstructionwill beginon the
facility in approximately January, 1996. The construction site is currently being
clearedConstructionon thebuildingis expectedtotake27 monthsandcompletion
is now scheduledforapproximatelysometimeduring thespringof1998.
The building is projected to be 20 stories tall with the lower floors providing
space for administration, pre-trial services, District Attorney intake and District
Clerkintakeoffices.TheentireHarrisCountyDistrictAttorneysofficewillbetrans-
ferred to this facility. Theirspace will consistoffour (4) floors. The upperfloors
will containallthecourtroomsandeachcourtroomwill beuniforminsize(approx-
imately 1980 squarefeet) with aplanforfour (4) courtroomsperfloor. Security is
ofutmost concern. The designers are providing a secure arrangement for trans-
portation ofprisoners to and from the holding area in the basementto each court-
room withoutany contact with the public through a secured elevator system. The
inputfromdefenseattorneyshas helpedconvincethedesigners to provideaconfer-
enceroom,atrialreadyroomandawitnesswaitingroomforeachcourtroom.There
isalsotobespaceallowedforan in-custodyconferenceroomforattorneysnearthe
holdover area adjacent to each courtroom. Defense attorneys present expressed a
desireto have an ongoing relationship with thedesigners andasked to beincluded
in any further meetings afterthepreliminary design stages are overand the actual
designdevelopmentbeginsonthefacility. RogerBridgewaterdeservesalotofcred-
itfor defense attorney input so far on the projectand we should all thank him for
inviting all thedefense attorneys to participate. OurAssociation needs to press on
with ourrequests in thefuture so thatourconcerns andideas will be heardonthis
buildingconstruction.
Yours truly,
DANNYK. EASTERLING
Director
10DOCKETCALL MARCH/APRIL1995
COURT OF
CRI


PPEALS

RECENT OPINION
BY JIM SKELTON
COURT OF CRIMINAL APPEALS 12/14/94
Bates, No. 1205-92 (Tex. Cr. App. 12114/94)
(Opinion by Meyers, J. Concurring opinion by
Clinton, J.; joined by Maloney, J. Concurring and dis-
senting opinion by McConnick, PJ., Joined By
White and Overstreet, J.J.)
HOLDING: A trial judge may not grant a new
tria) solely for punishment.
Aggravated sexual assault of a child. Appellant filed a MNT
and the trial court granted a new trial as to punishment only.
Following a Defense motion "Regarding Conduct of Trial"
the trial court restored Appellant's case to its original posi-
tion before the initial trial. The state appealed this latter
ruling. The CA reversed and reinstated Appellant's con-
viction at 833 S.W. 2d 643 (Tex. App. Eastland 1992)
1. MNT: Timely Orders
Absent clerical errors, a trial court cannot alter
orders granting a new trial outside the time of its plenary
power. Here, Appellants motion "Regarding Conduct of
Trial" was an order granting a new trial and was entered
more than 75 days after judgment and was void.
MNT: Pnnishment Only
A trial court has three options when a MNT is filed: (1) grant
the motion; (2) deny the motion; and (3) fail to rule, thereby overrul-
ing the motion by operation of law. Rule 31 of the Rules of Appellate
MARCH/APRIL 1995 DOCKET CALL 11
Court of
Criminal
Appeals

- CONTINUED FROM PAGE 11
Procedure states granting a new trial by a
trialcourt."Article44.29(b)CCPpermitsa
newtrialforpunishmenttobegrantedonly
by the courts of appeal or the Court of
Criminal Appeal. A trial court may not
grant a new trial for punishment only.
Here when the trial court ordered a new
trial solely for punishment, the state had
fifteen days to appeal this order, Article
44.01 (d). Sincethestatedidnottimelyfile
its notice ofappeal, the CA did not have
jurisdiction to rule on this motion and its
ordersettingasidethetrial court'sorderis
reversed.
(Concurring opinion by Clinton,J.,joined
by Maloney,J.):Thetrialcourtintendedto
granta newtrial andmistakenlythoughtit
could grant a new trial as to punishment
only. Since the state failed to timely give
notice of appeal, the order effectively
granting an unlimited trial became final.
As a matteroflaw, this "restores the case
toitspositionbeforetheformertrial."This
case should not only be remanded to the
custodyofthe sherifftoanswertheindict-
ment.
(Concurring and dissenting opinion by
McCormick, P. J., joined by White and
Overstreet, J.J.)ConcursWiththedisposi-
tionofthefirstgroundofreview- holding
the order granting a new trial on guilt!
innocence and punishment was void
becausethe orderwas notmade within 75
days ofjudgment. Dissents to the second
ground ofappeal that the state failed to
timely appeal the orderfor a new trial for
punishment only because it was not an
appealableorderunderArticle 44.0I CCP.
Appellant's remedy is to raise his con-
tentions in a post conviction writ. The
majority remands to the trial courtforfur-
therproceedingsconsistent with this deci-
sionbutnooneknowswhattheseproceed-
ings will be.
Pavalacka, No. 34693 (Tex. Cr. App.
12114/94)
(Opinion by Clinton,J. Dissentingopinion
by Campbell, J.,joinedby McCormick, P.
J. andWhite, J.)
HOLDING: In this aggravated sexual
assaultcase(1)itwasnotpermissibleto
introduce "evidence of other crimes,
wrongs,oracts"torebutdenialsofguilt.
(2) An impeached complainaut caunot
rehabilitatehimselfwithevideuce,solely
fromthecomplainant,theAccusedcom-
mittedotheroffensesagainsthim.
"IT IS NOT
PERMISSIBLE TO
INTRODUCE "EVIDENCE
OF OTHER CRIME,
WRONGS, OR ACTS"
TO REBUT ApPELLANT'S
DENIALS OF GUill"
Aggravated sexual assault. CAaffirmed at
848 S.W2d325 (Tex. App.-Houston [1st]
1991), holding it was not error to admit
evidence ofanother incident between the
victim and Appellant; that the evidence
was relevant apart from character confor-
mity; that its probative value was not sub-
stantially outweighed by the danger of
unfair prejudice. CCA reversed the CA
andremandedforaharmanalysis.
1. EXTRANEOUS OFFENSES:
SexualOffensesChildren
Earlier decisions, such as Boutwell v.
State. 719 S. W 2d 164 (Tex. Cr. App.
1986), holding extraneous sex offenses
between parent and child are admissible
pre-date the Rules ofCriminal Evidence.
Montgomery v. State, 810 S. W 2d 372
(Tex. Cr. App. 1991)(opiniononrehearing
onCourt'sownmotion)isapost-ruledeci-
sion and observes such evidence may be
relevant ifthe child-victim's credibility is
impugned. Vernon v. State, 841 S. W. 2d
407 (Tex. Cr. App. 1992) recapitulated
Montgomery and again emphasized the
victims credibility must be impugned
before suchevidenceis admissible. Here,
the victim was impeached but Appellant
argues thevictimcannotlogically rehabil-
itatehimselfby testifyingto 'othercrimes,
wrongs, or acts" perpetrated by the
Accusedagainsthim.
Appellant's defensive theory was the
victim's testimony was fabricated and the
product of improper influence from two
maternal aunts who quizzed the victim.
The record does not support this conclu-
sion because the aunt's claim they didnot
suggest this offense was not challenged.
The state's theory was this testimony was
admissibleto rebutAppellant'sdenialsand
to rehabilitate the victim's prior inconsis-
tentstatement.
Itis not permissible to introduce "evi-
dence ofothercrime. wrongs, or acts" to
rebutAppellant'sdenialsofguilt. Thevic-
tim claims oral sex was the primary
offenseandattemptedanalintercoursewas
theextraneousoffensehas is thatcorrobo-
rative force the extraneous offense has is
that Appellant was acting in conformity
withhischaracter. Thestatehassuggested
no logical inference otherthanthecharac-
ter conformity and this is what Rule 404
(b)Tex. R.Crim.Evid. prohibits.
The state's other connection is the
extraneouswasadmissibleafterthe victim
was impeached with a prior inconsistent
statement. An impeached complainant
cannot rehabilitate himself with evidence
solely from the complainant the Accused
committed other offenses against him. A
complainant's testimony may be under-
minedseveralways,including: (lOaprior
inconsistentstatement;(2) evidenceofbad
characterfortruthfulness;or(3) denial by
the Accused. Rehabilitation may take the
form of: (1) prior consistentstatements;
(2) experttestimonyexplainingwhy child
complainants may seemto prevaricate;(3)
evidence of good character for truthful-
ness; or(4) anyevidencelogicallycorrob-
orating the complainant's account of the
offense such as evidence from some other
source- other than the impeached com-
plainant - the Accused molested him.
CCA agrees testimony ofother molesta-
12 DOCKETCALL MARCH/APRIL1995
(('J1.
1 hereisan
obviousdifference
when thestateuses
anexpertand
when the
Defenseattempts
to usean
expert. "
tions coming from an impeached com-
plainant cannot logically serve to rehabili-
tate that complainant. The issue is credibil-
ity and the mere repetition of allegations
from a source of dubious credibility does
not render that source any more credible.
(Dissenting opinion by Campbell, J.,
joined by McCormick, PJ. and White, J.):
The extraneous offense was admissible
under 404 (b) to prove motive to commit
the charged offense.
COMMENT: Extraneous offenses should
not be admissible to prove "motive," as the
dissent suggests, because the factfinder can
infer motive from the act itself and motive
is not an element of the state's case.
Williams, Nos. 592-93 & 593-93 (Tex.
Cr.App.12-14-94)
(Opinion by Campbell, J. Miller, 1. dis-
sented. Dissenting opinion by Clinton, J.,
joined by Baird and Overstreet, 1.1.)
Telephone harassment. CA affirmed at
850 S.W.2d 784 (Tex.App. - Houston
[14th] 1994) holding the trial court did not
abuse its discretion in excluding expert tes-
timony about Appellant's psychological
profile. CCA affirmed the CA.
1. EXPERT TESTIMONY: Profile -
Inadmissible
A clinical psychologist testified about
the psychological profile of a person who
makes harassing sexual telephone calls. He
also did a series of tests on Appellant and
stated appellant's personality was the
opposite of one who would commit this
offense. This testimony was excluded and
the CA concluded it was "character judge-
ment" and did not constitute specialized
knowledge of the type contemplated by
Rule 702.
Duckett v. State, 797 S.W.2d 906 (Tex.
Cr. App. 1990) held expert testimony about
the profile of a victim of child sexual abuse
syndrome was admissible under Rule 702.
In Duckett the expert applied his generic
testimony about the common characteris-
tics displayed by child abuse victims to the
facts of the case, by pointing out the victim
made inconsistent statement about the sex-
ual abuse and initially reported the abuse
by complaining of genitalia irritation.
Here, the expert's testimony was not help-
ful to the jury because he did not specifi-
cally apply his psychological profile testi-
mony to actual characteristics possessed
by Appellant. The expert merely stated
Appellant was an "overachiever" and
"extremely moralistic;" he did not specifi-
cally state whether Appellant possessed
any of the typical characteristics of an
offender under the facts of this case.
(Dissenting opinion by Clinton, 1., joined
by Baird and Overstreet, 1.1.): The majori-
ty seems to implicitly reject the CA's hold-
ing that expert testimony whether an
alleged offender meets a psychological
profile for such offenders does not assist
the factfinder and therefore subject to
exclusion under Rule 702. The dissent dis-
agrees with the majority'S conclusion the
expert's testimony was inadequate to show
Appellant did not meet the profile of a per-
son who would commit this offense. The
trial objection was "improper character
evidence." The court's ruling was "I don't
think it's admissible." The state, at trial and
on appeal, did not challenge the empirical
foundation of the expert's testimony and
the CA's only reason for excluding it was
"character evidence."
COMMENT: There is an obvious dif-
ference when the state uses an expert and
when the Defense attempts to use an
expert. The state's experts are always qual-
ified whereas Defense experts seldom pass
the "expert test" There is a glaring dual
standard.
Casarez, No. 1114-93 (Tex. Cr. App. 12-
14-94)
(Opinion by Baird, J. Clinton, 1. joins with
a note. Maloney, J. concurs with the result.
Dissenting opinion by McCormick. P.J.,
Campbell, J. joined in paragraph IlL
Dissenting opinion by White, J. Dissenting
opinion by Meyers, J.,joined by Campbell,
J.)
HOLDING: Batson is extended to reli-
gious affiliations.
Aggravated sexual assault. The CA
affirmed at 857 S.w. 2d 779 (Tex. App.-Ft.
Worth 1993), holding the Equal Protection
Clause of the Fourteenth Amendment does
MARCH/APRIL 1995 DOCKET CALL 13
Court of
Criminal
Appeals

- CONTINUED FROM PAGE 13
not prohibit using a peremptory challenge
on the basis of religious preference. CCA
reversed the CA.
1. JURY VOIR DIRE: Religious
Preference
The state used peremptoriness on two
African Americans. In a Batson hearing,
the state claimed the strikes were based
upon the venire persons religion - their
Pentecostal faith - rather than racial rea-
sons. Appellant argued Batson should be
expanded to include religion.
Batson v. Kentucky, 476 U.S. 79, 95
S.Ct. 1712, (1986): holds Equal Protection
Clause prohibits use of peremptory strikes
based solely upon race. Powers v. Ohio,
III S.Ct. 1364 (1991): holds a defendant's
ethnic background is not relevant in Batson
issues. Edmonson v. Leesville Concrete
Co., III S.Ct. 2077 (1991): extended
Batson's application of the Equal
Protection Clause to civil trials. Georgia v.
McCollum, 112 S.Ct. 2348 (1992): held
Batson applied to criminal defendants.
J.E.B. v. Alabama ex reI. T.B., 114 S.Ct.
1419 (1994): held the Equal Protection
Clause prohibits use of peremptory chal-
lenges to exclude venire members on the
basis of gender. Here, The CCA ruled reli-
gion may not serve was a proxy for consti-
tutionaIIy prohibited bias and extended
Batson to religious preferences.
(Dissenting opinion by McCormick, PJ.,
Campbell, J. joined in part III): The record
demonstrates the venire members were
struck for reasons other than religion. One
had a brother in TDC and expressed dis-
comfort with the law on sexual assault of
children. The other's brother had been
arrested, incorrectly completed his ques-
tionnaire and appeared to be slow. On the
record the peremptory challenges were
proper. (This is the paragraph J. Campbell
joined). Also dissented to the majority's
holding that the religious - based peremp-
tory challenges are subject to strict scruti-
ny under the Equal Protection Clause of
the Fourteenth Amendment.
(Dissenting opinion by White, J.): Would
hold religious beliefs or affiliations for
strikes may co-exist with nonreligious and
nonracial reasons and are permissible.
States the majority failed to reveal all the
facts, namely that one of the jurors in
question was number thirty-three and
would not have served regardless of the
state's peremptory strikes.
(Dissenting opinion by Meyers, J.,joined
by Campbell, J.): Is to persuaded the U.S.
Constitution forbids peremptory chal-
lenges based upon religion because dis-
crimination based upon personal beliefs
has always been appropriate in jury selec-
tion. To hold one may not be excluded for
his religious preference is tantamount to
holding one may not be struck for his
beliefs.
Enos, No. 1262-93 (Tex.Cr.App. 12-14-
94)
(Opinion by Campbell, J.)
HOLDING: There is no express or
implied abrogation to the Gaskin rule
with respect to victim impact statement.
Aggravated robbery. The CA affirmed at
859 S.W.2d 594 (Tex.App.. -Ft.Worth
1993) holding Article 56.03 (g) exempts
victim impact statements from the Gaskin
rule. CCA reversed and remanded to CA.
1. RULE: 614 (a)
Rule 614 (a) Tex.R. Crim.P. codifies
and expands Gaskin V. State, 353 S.W.2d
467 (Tex. Cr. App. 1961) by requiring wit-
ness statements to be produced for cross-
examination. Here, a state witness testified
at punishment and had previously given a
victim impact statement. Appellant's
request to see the statement was denied
after an in camera inspection by the trial
judge. The judge stated there was "nothing
mitigating or exculpatory" in it.
Article 56.03 (g) CCP state a victim
impact statement is subject to discovery
under 39.14 CCP only if the court deter-
mines it contains exculpatory material..
56.03(g) does not abrogate the Gaskin rule
because 56.03 (g) deals only with impact
statements before the victim testifies and
Gaskin deals with witness statements after
the victim testifies. Gaskin, therefore
applies to victim impact statements. The
CCA remanded to the CA to consider the
argument that victim impact statements are
not discoverable under Gaskin.
Marin, No. 1265-93 (Tex.Cr.App. 12-14-
94)
(Opinion by Baird, J. McCormick, PJ. and
White, J. dissent. Clinton, 1. concurs with
the result. Concurring opinion by Meyers,
J.)
HOLDING: Article 1.051 requires an
appointed attorney who replaces anoth-
er appointed attorney be given ten days
to prepare for trial.
Conspiracy to deliver cocaine. The CA
affirmed at 862 S. W. 2d 183 (Tex. App. -
Austin 1993) holding an appointed attor-
ney who replaces another appointed attor-
ney is not entitled to ten days to prepare for
trial. CCA reversed the CA.
1. CCP: 1.051
Appellant's appointed counsel was permit-
ted to withdraw and new counsel was
appointed six days before trial. No objec-
tion was made to not having ten days to
prepare for trial. Failure to comply with
Article 1.051 CCP may raised for the first
time on appeal and is not subject to a harm-
less error analysis. This article has consis-
tently focused on actual preparation time
afforded appointed counsel and not the
time of formal appointment. 1.051 was
passed to ensure the indigent Defendant
receives appointed counsel who is pre-
pared for the proceeding. Here, counsel
was appointed six days prior to trial, hence
1.051 was violated.
(Concurring opinion by Meyers, J.): Henry
v. State, 433 S. W.2d 430 1968) and Roney
v. State, 632 S. W. 2D 598 (Tex. Cr. App.
1982) held in instances where two lawyers
are appointed. only one is entitled to ten
14 DOCKET CALL MARCH/APRIL 1995
day preparation time. Since the job of
judges is to see the will of the legislature is
implemented, Henry and Roney should be
overruled. This opinion points out the con-
cern that "defendants will somehow seize
control dockets" is without basis as the
trial judge can refuse to let appointed coun-
sel withdraw or permit new appointed
counsel only on the condition the Accused
waives the ten day preparation time.
Richardson, No. 105-94 (Tex.Cr.App. 12-
14-94)
(Opinion by Campell, J. Overstreet, 1. con-
curs in the result. Clinton and Miller, J.J.
dissent)
HOLDING: Removal of property from
the open bed of a pickup is an unlawful
entry, thus is burglary of a vebicle.
Burglary of a motor vehicle. The CA
affirmed at 868 S.W2d 14 (Tex.App. -
Houston [1st] 1993)
1. BURGLARY OF A VEHICLE:
Open Bed of a Pickup
Appellant reached into the open bed of
a pickup and removed fishing gear valued
at $800. He was convicted of burglary of a
motor vehicle. Coleman v. State, 608
S.W.2d 923 (Tex.Cr.App. [Panel Op.]
1980) held one who removes property
from the open bed of a pickup "enters" the
vehicle and thereby commits burglary; that
entry does not have to be in the cab portion
of the truck. Griffin v. State, 815 S.W2d
576 (Tex.Cr.App. ] 991) held removal of
tires and hubcaps is not burglary of a vehi-
cle because there was no entry into the
vehicle.
Banda, No. 69,827 (Tex. Cr. App. 12-]4-
94)
(Opinion by McCormick, P. J. Miller and
Overstreet, 1. J. concurs in the result.
Concurring opinion by Baird, J., joined by
Clinton, J.)
HOLDING: (1) Appellant's arrest for
public intoxication was valid. (2) A
Texas Ranger, after qualified as an
expert, may testify why another person
was not arrested. (3) Evidence of tat-
toos was admissible at punishment. (4)
The "mitigating" evidence did not
require a Penry instruction.
Capital murder - death. Affirmed.
1. ARREST: Public Intoxication
Appellant was arrested for public
intoxication in his cousin's back yard. He
claims this was not a public place, that the
arrest was illegal and the subsequent con-
fession should be suppressed. Prior to the
arrest, the arresting officer knew: (1)
Appellant's sister told the police Appellant
claimed to have killed some people and he
was going to kill some more. (2) The sis-
ter said Appellant was drunk and had blood
all over him. (3) People at the house were
frightened of Appellant and asked the
police to arrest him. (4) When an officer
arrived at the residence someone ran out
the back door and jumped over the fence.
(5) The officer was told the fleeing man
was the Appellant. (6) The officer chased
Appellant but lost him at the next fence.
(7) The officer searched around several
houses and could not find Appellant. (8)
"INTEXAS,A
PEACE OFFICER'S
AUTHORITY TO MAKE
A WARRANTLESS ARREST
IS CONTROLLED
EXCLUSIVELY BY
STATUTE."
Other officers searched for approximately
one hour and when they returned to the res-
idence, they found Appellant in the back
yard. CCA ruled these facts were suffi-
cient to circumstantially prove Appellant
appeared intoxicated in a public place.
2. EXPERT WITNESS: Texas Ranger
Appellant's defensive theory was that
Johnny Blanda did the murder. The
Defense elicited testimony on cross-exam-
ination of Blanda that he was not arrested
for the crime. The state called a Texas
Ranger who testified there was insufficient
evidence to arrest Blanda. He did not com-
ment on whether Blanda was involved in
the crime, but explained why he was not
charged.
3. PUNISHMENT: Evidence of Tattoos
After the murder, Appellant tattooed a
picture of Jesus with horns and "Satan on
his wrist. This testimony was presented at
punishment. During the punishment
phase, evidence may be presented on any
matter deemed relevant to answering the
special issues. Hernandez v. State, 819
S.W.2d 806 (Tex.Cr.App.l991). A capital
Defendant's expression of speech and
belief is relevant to future dangerousness if
the belief is related to the murder.
Evidence of the tattoo was relevant
because further evidence revealed
Appellant told his sister he had sold his
soul to the devil and the devil told him to
kill six people and he had to kill four more.
4. PUNISHMENT: Penry
In considering Penry issues courts must
determine: (1) what mitigating evidence
was presented; (2) whether the punish-
ment issues provided a vehicle to give
effect to this evidence; and if not, (3)
whether the charge provided a vehicle for
the jury to effectively consider mitigating
evidence. Joiner v. State, 825 S.W2d 701,
706 (Tex.Cr.App. 1992). Here, the only
mitigating evidence was youth (Appellant
was twenty-one at the time of the offense),
intoxication and the state's decision not to
prosecute his "more culpable" brother.
The special issues provided an adequate
vehicle to give effect to this evidence.
(Concurring opinion by Baird, J.,joined by
Clinton, J.): Does not consider a yard a
"public place" for purposes of public
intoxication. Fry v. State, 639 S.W2d 463
(Tex.Cr.App. 1982): "In Texas, a peace
officer's authority to make a warrantless
arrest is controlled exclusively by statute.
The Code of Criminal Procedure autho-
rizes very few exceptions to the general
requirement that a peace officer obtain a
warrant before making an arrest."
Article 14.01(b) does not justify the
arrest because it was not an offense com-
mitted in the officer's presence. Pugh v.
State, 117 S.W.2d 817 (Tex.Cr.App.1909)
involved a case where a man wa<; "lying
down in the yard" of a private residence
"apparently sick." He was arrested for
MARCH/APRIL1995 DOCKET CALL 15
Court of
Criminal
Appeals

- CONTINUED FROM PAGE 15
public intoxication and the Pugh court
held: "A private residence cannot be a
public place within the terms of our statute,
not at any time, unless it is made public by
being thrown open for access to the pub-
lic... Nor does the mere fact that a few
invited guests attended the gathering of a
friend at the private residence of their
friend constitute that gathering a public
one, or the residence a public place .. , it
may be questioned that the evidence is suf-
ficient even to show that appellant was
drunk; but clearly it excludes the idea that,
if he was drunk, it was a public place."
Articles 14.3 (a)(l) permits the arrest of
persons found in suspicious places under
circumstances which reasonably show the
person is guilty of some felony or breach
of the peace. "Circumstances which rea-
sonably show that such person have been
guilty of some felony ... " is the constitu-
tional equivalent to probable cause to
believe is a particular person has commit-
ted a felony. Muniz v. State, 851 S.W.2d
238, 251 (Tex.Cr.App.1992). Muniz goes
on to state, "few, if any, places are suspi-
cious in and of themselves." It is only
when additional facts, along with reason-
able inferences from those facts, that a
place may become suspicious. Here, the
officer did not feel he had probable cause
to arrest Appellant. He could not vouch for
the credibility of his information.
Information provided by a police broadcast
or an anonymous phone call is not suffi-
cient, standing alone, to establish probable
cause. See: Adores v. State, 816 S.W.2d
407, 415 (Tex.Cr.App.1991); Rajas v.
State, 797 S.W.2d 41, 43 (Tex.Cr.App.
1990); Glass v. State, 681 S.W.2d 599
(Tex. Cr. App.l 984); Ferguson v. State, 573
S.W.2d 516, 522 (Tex.Cr.App.1978);
Ablon v. State, 537 S.W.2d 267, 269
(Tex.Cr.App. 1975). Here there was a
report from a citizen and a report by a citi-
zen, whose credibility is unknown, is akin
to an anonymous phone call and may not
establish probable cause. Smith v. State,
739 S.W.2d 848, 852 (Tex.Cr.App.1987)
(citizens reporting a gun at a club was held
insufficient).
The concurring opinion would hold the
arrest to be unlawful but would further
hold Appellant's confession was sufficient-
ly attenuated from the illegal arrest.
Appellant was given his Miranda warnings
and there is a complete absence of any
improper purpose or flagrant police mis-
conduct. See Bell v. State, 724 S.W.2d 780
(Tex.Cr.App.1986).
/IApPELLANT WAS
NOT /I SEIZED" WITHIN
THE MEANING OF THE
FOURTH AMENDMENT./1
Martinez, No. 71,481 (Tex.Cr.App. 12-14-
94)
(Opinion by Campbell, J. Clinton, J. dis-
sents)
HOLDING: Appellant was not "seized"
within the meaning of the Fourth
Amendment.
Capital murder death. Affirmed.
1. ARREST: "Seized"
After the murders, Appellant was invit-
ed to the police station. There was no
insinuation he would have been forcibly
removed had he not accepted this "invita-
tion." He was not handcuffed. This sup-
for cause, clearly articulating the grounds,
was made; (3) a peremptory was used on
the challenged juror; (4) all peremptories
were used; (5) request for additional
peremptories; (6) an objectional juror sat
on the case, by pointing out he is being
forced to try a case with a juror seated he
would have struck if he had not used all his
peremptory challenges. Here, error was
not preserved.
Lewis, No. 71,615 (Tex.Cr.App. 12-14-94)
(Opinion by Overstreet. J. Dissenting
opinion by McCormick, P.J., joined by
Campbell, White and Meyers J.J.)
HOLDING: A Defendant may not be
ordered to pay restitution to any person
other than the victim of his offense.
Post conviction writ. Relief granted.
Applicant entered a plea to an enhanced
burglary charge, was given thirty years,
and ordered to pay restitution. Applicant
contends the restitution order violated due
process under the Fourteenth Amendment
and due course of law under Article I, sec-
tion 19 of the Texas Constitution.
1. RESTITUTION: Third Parties
Applicant was sentenced to thirty years
and was ordered to pay $250 to Donald
Snortland and $10,988.20 to U.SAA. as
restitution. A Defendant may not be
ordered to pay restitution to anyone but the
victim. Martin v. State, 874 S.W.2d 674
(Tex.Cr.App.l994). Here, Snortland was
complainant in another burglary case and
U.S.A.A. was not the complainant in any
of Applicant's cases.
(Dissenting opinion by McCormick, PJ.,
joined by Cambell, White and Meyers J.J.):
Restitution was a part of the plea bargain
agreement and should be enforced.
ports the conclusion Appellant was not
"seized" within the meaning of the Fourth
Amendment, hence his confession is
admissible.
2. JURY VOIR DIRE: Preserving
Error - Challenge Denied
To preserve error when the trial judge
denies a challenge for cause, the Appellant
must show: (1)the voir dire was recorded
and transcribed; (2) a specific challenge
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J6 DOCKET CALL MARCH/APRIL1995
IIEx Parle Crisp
Revisiteel"
By Robert J. Inger
R
ecently, I represented an
alleged habitual defendant,
chargedwithdelivery ofhero-
in-lessthan28grams.
The two prior convictions were
forpossessionofacontrolledsubstancein
1979and in 1984.
Afterreviewingthefacts withmy
client, I scrutinized the pertinent docu-
mentsundertheoldestcausenumberbeing
used for enhancement. I found no smok-
ing gun! Next, I turned to the 1984 con-
viction.The indictmentallegedpossession
ofcocaine. Didit fail to allege aculpable
mental state? (See, Ex Parte Kirby, 626
S.W.2d 533 [Tex. Crim. App. 1981]. Was
that the year cocaine was left out of the
Controlled SubstanceAct? (See, Ex Parte
Perez, 618 S.W.2d 770 (Tex. Crim .. App.
1981). Neitherquestion was answered in
the affirmative,anditlookedgrim.
Then, while perusingthecasesin
myenhancementfile, IstumbledacrossEx
Parte Owenby. 749 S.W.2d 880 (Tex.
Crim..App. 1988). Owenby claimedinhis
writ ofhabeas corpus that since he was
chargedandconvictedunderavoid statute
(ART. 4476-15 V.A.C.S., the Controlled
SubstanceActas amended by H. B. 730),
he was entitled to relief. Owenby's argu-
ment was based on Ex Parte Crisp, 661
S.W.2d 944 (Tex. Crim.. App. 1983). In
Crisp, the CourtofCriminal Appeals held
H. B. 730 to be unconstitutional, in its
attempt to amend the penalty ranges for
drug related offenses, and incorporating
"aggravated offenses" into the Controlled
Substance Act. The court in Crisp also
held that though the amendment was
unconstitutional and invalid, the Law as it
existed prior to the amendment remained
infull force and effect.
In analyzing Crisp, the Court of
Criminal Appeals in Owenby held that if
the offense alleged was an offense under
the "prior law", then the conviction was
notvoid; however, Oivenby wasentitledto
a new punishment hearing since the pun-
ishmentoptionsavailableundertheuncon-
stitutionalamendmentwere differentfrom
the "priorlaw".
In Owenby's case, the only difference
on punishment was that a fine could be
assessed in addition to jail time under H.
B. 730; afine was notan option underthe
"oldlaw".
Well, as luck would have it, my
clientwasalsochargedandsentenced,pur-
suant to the unconstitutional statute (see
Owenby, p.881,fn. 2fortheeffectivedate;
he too would be entitled to a new punish-
ment hearing. Therefore, his conviction
date as alleged in the enhancement para-
graphwasnotfinal sinceanewsentencing
would have to take place. This would be
true, even ifthe second sentence was no
differentfrom the first.
A motion to quash and set aside
the offending paragraph was all that was
needed to obtain an equitable result; how-
ever, a writ ofhabeas corpus maybe nec-
essary!
COGITO,ERGOSUM!
MOTIONTOSETASIDEAND
QUASHENHANCEMENTOF
PARAGRAPHNO.2
The,[8], makesthishisMotionto
Quash and Set Aside Enhancement of
Paragraph No. 2 in this Cause and would
show theCourtas follows:
I.
That this Cause alleges a prior
conviction in Cause Number ____
forpossessionofcocaine. Thedateofsen-
tencing is January 17, 1984. The indict-
ment, judgment, and sentence states that
under the offense was committed on July
5, 1983.
II.
That this Defendant was sen-
tenced pursuant to an unconstitutional
amendment to the Controlled Substance
Act, specifically H. B. 730, Ex Parte
Owenby, 749 S. W. 2d 880 (Tex. Crill.
App. 1988),andEx Parte Crisp, 661 S.W.
2d 944 (Tex. Crim. App. 1988). That Ex
Parte Crisp declaredthe 1981 amendment
contained in H. B. 730 to be unconstitu-
tional, (See Owenbyat 881).
Further, that Owenby involved
possession of methamphetamine with
intentto deliver, andthe date givenforthe
commission ofthe offense in Owenby was
January1.1983. Thedateallegedforcom-
mission ofthe offense in the Defendant's
Cause was July 5, 1983. Owenby was
reversedfor anew hearing on punishment
(p.883).
Therefore, this Defendantis enti-
tledto anew punishmenthearingin Cause
No. , since the Defendant's
conviction and sentence thereon is not yet
final.
WHEREFORE PREMISES
CONSIDERED, Defendant prays that
enhancementofparagraph number two be
quashedandsetaside.
Respectfullysubmitted,
AttorneyforDefendant
tn
QIa
Louis F. linden
r1" dMk here. It', only five in the
;::Jafternoon and its dark here. I
don't remember it being dark at
five in the afternoon at home. I can look
out my twelfth floor window and see in all
the offices across the street. They're all
brightly florescent lit. They look two
dimensional. As far as I can tell the build-
ing on the other side of K Street is only fif-
teen feet deep. It's rather like an ant farm.
I'm sure that my building looks like an ant
farm to them. The bright lights from the
offices accentuate the fact that it's dark
here. Just above the building I can see the
two red lights at the top of the Washington
Monument blinking on and off. All I can
see is the upper fourth of it lit from the
ground like a Cape Canaveral rocket that
never gets to the end of the countdown.
The rest is hidden by the office building as
is the Potomac. It's dark here. I don't
remember it being this dark before the
election.
I was glad to miss the election at home.
Tulia Vulgaris called me Tuesday night
from Your Mom'n Thems' Fried Chicken.
He wasn't happy. He's not a Republican.
I'm not happy. I'm not a Republican. I
even know some Republicans who are not
happy, here and there. Partisan election of
judges is a real bad idea. There were some
bright spots here. Every morning when I
come out of the subway (affectionately
known here as the Electric Sewer) there's a
guy playing tenor sax and it's not Bill
Clinton. I give him my spare change. In
Virginia Ollie North didn't get elected.
Maryland avoided (but just barely) its first
Republican governor since Spiro Agnew.
TheDistrict of Columbia elected former
Mayor Marion Barry for a fourth term as
Mayor. How's that for rehabilitation?
When the overwhelmingly white popula
tion of the Northwestern part of D.C. were
upset about the election of a con victed
crack smoker as Mayor he told them sim-
ply, "Get over it!" Not bad advice for us
all.
Something nasty may be coming your
way. Actually it already arrived. When the
much vaunted Crime Bill was signed by
the President it added three new rules to
the Federal Rules of Evidence. They go
into effect 180 days after the bill was
signed. Rules 413, 414, and 415 concern
evidence of similar crimes in sex cases.
Rule 413 reads in pertinent part:
"(a) In a criminal case in
which the defendant is accused of an
offense of sexual assault, evidence of
the defendant's commission of
another offense or offenses of sexual
assault is admissible, and may be
considered for its bearing on any
matter to which it is relevant."
Rule 414 reads the same way except it
applies specifically to child molestation.
Rule 415 makes such evidence admissible
on behalf of a plaintiff in a civil suit. Some
fun, huh kids? Welcome to the wonderful
world of propensity evidence.
Now obviously not many of us are
going to be trying any rape or molestation
cases in federal court soon unless the next
Congress decides to make all street crime
federal (Mr. Dole? Mr. Gingrich?). These
cases are going to appear on military bases,
Indian reservations and the like of which
there are not many in HarrisCounty. But
the implication for those of us who work
mostly in state court is just as obvious
given the close relationship between the
Texas Rules of Criminal Evidence and the
Federal Rules. It is instructive for us to
note how these incredibly ill-advised Rules
came about.
These Rules are not the product of the
Rules Enabling Act procedure. In that
process the Judicial Conference makes
rules after public hearings. Congress then
has the opportunity to review the Rules
and. should it see fit, to prevent their pro-
mulgation. That process was completely
ignored in this case. As the Crime Bill was
being wracked and torn in conference last
autumn, horse trading and jawboning were
the order of the day. In the closing minutes
of the process Rep. Susan Mollinari (R.-
N.Y.) offered her vote as the last one, the
vote that would allow them all to go home
as crime fighters. The quid pro quo for the
vote was inclusion of the rules within the
Republican package of amendments from
the floor. The deal was done and the
truthfinding process got the short end of
the stick. The ascendance of politics over
rationality, the very evil the Rules Enabling
Act was designed to prevent, was a fait
accompli.
You have to admit that these rules have
a certain elegant simplicity about them.
J 8 DOCKET CALL
MARCH/APRIL 1995
There's none of that messy balancing or
worrying about whether a jury might be
unfairly prejudiced. For that matter there's
no worrying about whether the previous
conviction is valid; there's no conviction
required. There's no worrying about
whether the government has met its burden
of proof because it has no burden. Any evi-
dence of your defendant ever without con-
sent having touched or been touched by
genitals is per se admissible. Now we're all
saved from those nagging doubts about the
reliability of witnesses. The fact that your
client's ex-wife took a bath in the divorce
suit and got only the family photo album,
an aluminum sauce pan and liability for the
phone bill simply don't matter. Now
admittedly the government is supposed to
give you fifteen days notice and that could
of course upset some of us. But your
friendly U.S. Congress wants you to know
they don't want to ruin your evenings so
they added a clause that allows notice,
"...at such later time as the court may allow
for good cause." I love surprises, don't
you?
To be honest I wouldn't get worked up
over this issue if I had faith in our State
judiciary's ability to make rational, sensi-
ble rules. I did have faith until the day the
voters of Texas elevated a mediocre gener-
al practitioner with virtually no criminal
law experience (or, as far as I can tell trial
experience of any sort), not to mention an
obvious disdain for such outmoded con-
cepts as truth and honesty, to the Court of
Criminal Appeals. (It's rather as if the
ghost of Senator Hruska had returned. You
will remember he was the U.S. Senator
from Nebraska who maintained that it was
important that the mediocre people have
someone to represent them.) I expect that
someone that unfamiliar with the Rules of
Evidence and their underlying conceptual
basis will find Rules 413-415 very appeal-
ing. J mean it's intuitively obvious that if
someone said your client did it once, then
it stands to reason he probably did itagain.
Don't you think?
There are some other interesting things
on the coming attractions list. The new
majority has been handing around what
they call the, "Taking Back our Streets
Act." It's part of the "Contract with
America." Among other things it will limit
federal habeas corpus in death penalty
cases, provide a good faith exception to
the exclusionary rule. authorize
$10,500,000,00 for building (but not
staffing or running) new state prisons, and
mandates that in the trial of any of the 50
or so new federal capital offenses that
juries be instructed to return a recommen-
dation of death when aggravating factors
outweigh mitigating factors so as to make
the process simpler by removing discretion
from the judge and jury (their language,
not mine). Ifyou're interested in more
details write to Congressman Dick Armey
502 O'Neill House Office Building
Washington, D.C. 20515 and ask for the
House Republican Conference Legislative
Digest for September 27, 1994. Or you
could call him at (202) 226-2302. I'm sure
he would be delighted to hear from fellow
Texans. In the meantime I suggest that you
all start covering each other's back sides.
It's dark here. And it's getting darker.
Like the fella who rode out of the Alamo to
go for help, Lou Linden left Houston ten
days before the election to serve (once
again) as Executive Director of the
National Association of Criminal Defense
Lawyers. He is also Docket Call's
Washington correspondent. He hopes to
be home in four months.
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GreaterHoustonDivorceClinic
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405 Main Street, Suite 300
Houston, Texas 77002
RobertH. Cranshaw, Jr.
Phone: 713-223-4550
Fax: 713-223-4559