1986 March Docket Call

8/11/2019 1986 March Docket Call

1/40

DOCI(ET CALL

MARCH

1986

JUnGE

C RROLL

WEAVER

927 986


2/40

Robert Pelton ~ ~

Candelario Elizondo P m i ~ . t J 1 l t

Jay

Burnett Pm!.t

Mary Moore

S ... tlff

James

Dougherty

r ......

Randy McDonald

Ii .

DO KET CAll Is published monthly by

the

Harris County Crimi.

nal lawyers

Association,

P.

O. Box

22773, Houston, Texas

77027.

Advertising

Rates: Full

page

$200.00;

!

page -

$100.00;

#

page $50.00 per

Issue.

All

articles

and

other

editorial

contributions should be

mailed

to

HeCLA P.O. Box 22773, Houston, Texas 77027.

[ ~ i t .

Allen

C. sbe l l

Prdwti

Donna

K. Kleszcz

NEWSLETTER

DEADLINE Material for publication

should be submitted

by

Friday,

March 28 for

the

April

Docket Call.

Past Presidents 19711984

J. Anthony Friloux

Stuart Kinard

George Luquette

Marvin

O.

Teague

Dick DeGuerin

W. B. "Bennie" House.

Jr.

David R. Bires

Woody Densen

Will Gray

Edward A. Mallen

Carolyn Garcia

Jack B. Zimmermann

Clyde Williams

Board of Directors:

Randy McDonald. hairman

John Ackerman

Ray Bass

Walter Boyd

Catherine Greene Burnett

Felix Cantu

Jan Fox

Carolyn Garcia

Johnny Gill

Will Gray

Ruben

Guerrero

Charlone Harris

Allen Isbell

David Mitcham

Frumencio Reyes

G.

Mac Secrest

Clyde Williams


3/40

rrom the President s esk

...

Robert Pelton

Your organiza t ion i s

due

for some changes in

the

following months.

The obvious

change

i s

Docket Cal l . n organiza t ion with the best law-

yers in the United Sta tes needs to have the bes t

publ icat ion .

The appearance and

content of

Docket

Cal l i s a

move

in t ha t di r ec t ion .

Thanks to

Allen

I sbe l l , Edi tor of Docket Cal l ,

the content of our

publ icat ion

i s exce l len t .

Allen

and

I

have

decided to make severa l addi

t ions

to

the

monthly

magazine. Some

of these

changes are as fol lows:

1. Let te r s -

when

you have something

to

say,

then

send it in .

2. Advocates

- column

wri t ten by former

Pres ident Carolyn Garcia tha t w i l l deal

with

i ssues

on

cap i t a l murder

cases .

3.

Tr ia l

Tact ics - wri t ten by Jim Skelton

(world famous lawyer and "Healer of

Broken Hearts ) .

4. Court Tales - a column

each

month

wil l

be

wri t t en by one of the

D i s t r i c t

Court or

County Court judges

in Harr i s

County.

Judge Shel ly Hancock has "volunteered" to

wri te

the f i r s t column and to furn i sh

other

volunteer judges or himsel f to

keep

information flowing.

Harr i s

County

Criminal

Lawyers Associat ion

plans

on

providing

plenty

of

seminars

and

tapes

so you

can get mandatory

Continuing

Legal Educa-

t ion

hours here in

Houston. We hope to get Con-

t inu ing Legal Education approval for Jim Skel ton ' s

Wednesday

sess ions

and provide these f ree to

HCCL

members. As you

know,

some hours can be

se l f - s tudy .

so check with

the

HCCL of f i ce regard

ing viewing tapes t ha t

soon

wil l

be

ava i l ab le .

Local judges and

bondsmen cont inue

to be

support ive of t h i s organiza t ion

as seen

by

the

adver t i sements in t h i s

i ssue. Thank you.

The

at tendance

a t

HCCLA s

luncheons

is

shame-

ful . Clyde Williams has provided exce l l en t

pro-

grams a t

these monthly luncheons and

you

are

mis-

Sing i n t e r e s t i ng and informat ive speakers

when

you do not

come

to the luncheons. Do you want to

keep having the luncheons? High Sher i f f

Johnny

Klevenhagen.

T. R. Coney, Major

Breckenridge

and

s t a f f

are

guests a t the March luncheon. Come t o

the luncheon and t a lk to these folks i f

you

are

having problems a t the j a i l .

Michael Essmyer

( f rom

the s t a b l e s of "Race-

horse" Haynes) and Ben Durant have been appoin ted

to

fill two vacant d i r ec to r ' s pos i t ions . Those

of

you

who

are in te r es ted

in

running

for

o f f i c e r

or di rec tor pOsi t ions need

to

apply soon. Cal l

the

HCCL

of f i ce

for d e ta i l s .

At

the

next

board meet ing (1)

I am propos ing

tha t a

new

membership c l a s s i f i ca t i o n be e s t a b l i s h

ed, tha t being a

sus t a in ing member.

A su s t a i n i n g

member

wil l

pay

annual dues

of

$200.00

and

t h a t

s t a t u s wil l be a

requi rement

for

a l l d i r e c t o r s

and o f f i c e r s o f HCCLA. I t

i s

my

hope

t h a t t h i s

requirement wi l l be made re t roac t ive to t h i s

year ' s o f f i c e r s

and

di rec tors . $2300.00 w i l l be

added

to

the bank account i f

t h i s

i s passed . Thi

addi t ional money

can

be

used to buy

a word

pr o

cessor /computer wi th the

West

Law c a p a b i l i t y t h a

wi l l be made ava i lab le to

you, the

members.

I have reviewed the f inanc ia l a f f a i r s of

t h i s

organiza t ion

for

the

pas t

few years and it

seems

to me tha t

each month t he re

i s

j u s t

bare ly enoug

money to pay

expenses .

This

needs to

be

changed

My goal

i s

to have a t l eas t

$10,000.00

in the

bank a t the end of my term

in

Yay. This money

needs to

be

spent

on

th ings

tha t w i l l help

t he

members such

as (1)

word

processor /computer

to

keep up

with

forms and

informat ion

for

members;

(2) l i b ra ry on cr imina l law tha t

would

be a v a i l

able for members; (3)

educat ional

t apes ; (4) f u l

t ime

s t a f f

members.

As f a r

as

I am

concerned no money

from

HCCL

should

be spent

on

Christmas p ar t i e s , or

anyth in

e lse tha t does not di rec t ly he lp

the

members

learn

to be

b e t t e r

lawyers.

The world

i s f u l l

o

insane, mental ly cr ipp led , depraved, misguided

and soc ia l ly unacceptable

people

who w i l l come

t

you

for help. I f

you

hold yourse l f ou t to be a

lawyer, then

you

have

an

obl iga t ion to

help

thes

people who

did

not get dea l t a

f a i r band in

life

To

do t h i s you

must be prepared . Hopeful ly ,

the

members of

t h i s

organizat ion can work e f f ec t i v e l

to he lp each o ther

do

the

job

we chose to do -

represent

tha t

person we ca l l a c l i en t .
http:///reader/full/10,000.00http:///reader/full/10,000.00


4/40

LETTERS

February 15, 1986

Robert O. Pelton,

Esquire

President,

Harris County

criminal

Lawyers Association

1610 Richmond Avenue

Houston, Texas

77006

Dear Robert:

Enclosed with th is

l e t t e r

is a copy of a car

toon

tha t

appeared in the February

1986

i ssue

of

Docket

Call ,

the monthly publication

of

the

Harris

County

criminal

Lawyers

Association.

I'm

amazed tha t th is crude and heavy-handed

attempt

a t

humor was published.

I t

i s not

funny. On the contrary,

i t

i s both offensive

and

tas te less ,

par t icular ly

in what appears to

have

been

i t s studied ef for t to

portray a l l

three characters as black people. I f we crimi

nal defense

attorneys are

real ly

prepared to

laugh a t the idea of people

being

executed, or

of

the i r

own

lawyers

making

a

joke

out of i t ,

we've

obviously descended to a level of cynicism

and

insens i t iv i ty

unprecedented

even for us.

There are, of course, numberless jokes and car

toons (The Wizard of

Id i s

an

example) portraying

Judges

as-venal

ana-incompetent; jurors

as

stupid

and i r responsible, and defense lawyers as greedy,

shi f t less

and generally

disreputable, i f

not

actual ly

dishonest . These stereotypes

- -

i f they

are

stereotypes - - are

no more deserving

of

per

petuation, or of our express or implied approbation,

than

the equally

t radi t ional

rac ia l or

ethnic jokes.

They are not funny. They are

not

clever.

Rather,

by our acceptance of

them,

they demean

and

degrade

us a l l .

I

wonder

i f

most

of

us

would to lerate

cartoon

humor

attempting to depict the l ighter

side

of the attempt

to exterminate the Jews

during

the Holocaust, or

of

the lynching of black people

in

the South

ear l ie r

in

th is century, or of sexual

abuse

of

children,

or of

del iberate cruelty

to animals, or

of

any

Cartoonist

Terry Proctor 's reply

. . .

(1) I'm color-bl

indo

It never occurred

to

me

that

anyone would see a thumbprint

as

ethnic.

Perhaps

Attorney

Maness didn' t

realize my

cartoons

are done from finger

prints.

(2) It is my bel ief that

i t

is healthy to

poke fun

a t

yourself once in a

whi

Ie. Doc-

ket Call i sn t a public

publication but

a

house

organ for attorneys. This

same

car

toon

ran

in

1978 in the Texas Bar Journal

without

any

unfavorable response.

of

a

multitude of other subjects

that for reason

obvious

to

any

reasonably

intel l igent

person

are

simply

not appropriate subjects for

levi ty . I f

there real ly i s something funny about capi ta l

punishment, I haven' t encountered t during

the

17 years I ve been pract icing law.

You

may

recal l

that prior to John

Spinkel l ink 's

electrocut ion

by

the State of Florida in 1979 h

guards were alleged to have taunted, humiliated

and

r idiculed

him. James David Autry's executio

in 1983 was

preceded by the

same

sor t

of "fun"

among tha t crowd of

real ly superlat ive

human bei

gathered

outside

the Walls Unit

a t Huntsville.

now

seems

as

i f

we've

been infected with the i r

pecul iar sense of humor:

there s nothing l ike

a

good joke a t the expense of a guy

who's about

to

be executed.

without intending to sound

overly sententious, I

believe our business and profession i s an excep

t ionally serious one. A person confronted with

serious criminal accusation wants, and i s

ent i t l

to , an in te l l igent , competent, well-prepared law

not a

stand-up comedian.

We demean

and

t r iv ia l iz

the system,

and

our

role

in i t , when we

act

as

i

t

were

otherwise.

Of course, I recognize

the

consti tut ional r ight

you, and Allen

Isbel l ,

and

Terry Proctor , to pu

l i sh anything

you

damn

well

please. I jus t wan

you a l l

to

know

my view

that t h i s

cartoon i s

de

able and shameful.

i n e r e l Y

you s ,

Michael A. Maness

MAM: wgl

Enc.

(3) Puns about serious matters do not

t ranslate into

a condonation or

endorse

ment

of

the action,

particular ly

when

not

directed

to

any

specific person or inci

dent.

(4)

I

agree

wi

th Attorney

Maness

that

an

accused

wants an intell igent,

competent,

well-prepared

attorney. I will put my

record

up

against anyone

for time

in trying

to improve the public image of attorneys

and our profession.

5) I hope other members of the

HeCLA

wi 1

use

this

column to express themselves, goo

or bad, about the many things

that

appear

:n this fine publ

ication.


5/40

e rs y

By

l len C Isbel l

Free pass

to the

fol lowing judges: Judge

Thomas Routt

(208th),

Judge

Doug

Shaver

(262nd),

Judge

Charles Hearn

(263rdl ,

Judge Ted

Poe

(228thl ,

Judge Sherman

Ross

(County Criminal Court

t lO), Judge

Neel

Richardson

(County Criminal Court

ta), Judge Shel ly Hancock (County

Cr iminal

Court

7 )

and Judge

Terracino

(County

Criminal

Court

H2.

At the

March luncheon Jay Burnett

repor ted

on

the work of the amicus

committee

and i t s

br ie f

in

Robinson

v. State (regarding

rese t agreements

in

Harris County

and

the

STA .

Jus t i ce

Ben

Levy

(1s t

Court

of

Appeals) ,

a

jud ic ia l

ac t iv i s t ,

spoke

to

our

luncheon

on

his proposed

pa r en t - ch i ld

privi lege- , emphasizing

the paramount

r ight

of

privacy and the need for

preserving

the i n t egr i ty

and s tab i l i ty

of

the

family.

Parents sending

chi ldren

to

prison

and

chi ldren

sending

parents

to

prison i s

a

spectre of

a to ta l i t a r i an

soc ie ty , in

Levy's

views

Randy Schaffer , our

assoc ia t ion s

exper t

in the parent-chi ld

pr ivi lege,

was present .

Attending the luncheon were

a

number of the

jud iciary besides speaker,

Jus t ice

Ben Levy,

Judge

Angel

Fraga

(County

Cr iminal Court

114),

Judge

Bonnie Fitch (County

Criminal Court 13) , Judge

Sam

Alfano (Municipal Cour t ) ,

Judge Frances

Williams

(County Court 4) , and Chief Jus t i ce

Frank Evans (1s t Court of

Appeals).

How did

Judge

Pat Lykos spend her birthday?

In part , by

at tending the

luncheon of the HCCLA

Clyde

Williams

has been

ge t t ing some

excel len t

speakers

for

our

noon luncheon. In

April ,

Senator Parker will

speak

on the

Grand

Jury

system (he has

a

unique

perspect ive nowl.

In

May,

Judge

Eric

Andell wil l speak about prac t ic ing

juvenile law. In the near fu ture , Dr.

Ron Owens

of

the

Life

Ski l l Resource Center will speak on

Treatment

for

Aggressive Behavior

and i t s

Courtroom

Applicat ion.

The

big N.G. of

the

year goes

to Dick

DeGeurin

for the acqui t ta l of school

pr inc ipa l

Fontenot

. Audley Heath got an

-N.G.

from a

jury. The charge was pros t i tu t ion ; the defense was

ent rap- ment. was recent ly cer t i f ied as

a

criminal

law

specia l i s t .

Frank

Medina got

an

N.G. on an

indecency with

a

chi ld case out

of

the l83rd.

Jury out 5 minutesl Case

arose

out of

a

custody

ba t t l e in divorce cour t . Seems

a

lo t of

cases

s t a r t ing in

the Family Law

Center

are

dr i f t ing

across

the s t r ee t to 301 San Jacinto

Sometimes

defense lawyers l i ke to lose

-

Desmond

Gay

has

los t 7S Ibs . Mark Mueller won an

wN.G.- out of the 263rd, on

an aggravated

sexua

assau l t case

involving

a woman

defendant and

a

S

year old

female chi ld .

The videotape of the ch i ld

was

suppressed

before

the t r i a l

Clyde

Williams

is on

a ro l l

with

2

vic to r ies involving

al leged publ ic - touching- in

Montrose

bars

Mike Fosher

has

had 3

-N.G.'sw in

a row,

the

l a t e s t one being in County Criminal Court for2

publ ic lewdness

Kurt Wentz

got a di rec ted

verdic t of N.G.

in an arson case out of the

339th.

Our

prez.

Robert Pel

ton

has

conducted two

board meetings

without

resor t ing to

four - l e t t e r

adjec t ives , nouns,

or verbsl

How did

a

n ice

boy

from

Abilene

learn

the sa l t y language

of

the

sea?

Seen

a t

the

Country

Playhouse 's product ion o

The

Great

Sebast ians were

Judge

Jon

Lindsay

and

wife

Tony

(she

is

research

lawyer a t the 1s t Cour

of Appeals) His execut ive

as s i s t an t ,

Krischke, was

in

the play and she

and

hubby

Herbert

hosted an a f t e r -p lay pa r ty . Pa t r i c i a Lepe

as s i s t an t , at tended the play

and

par ty . Th

play

is about

wmind reading.

w

Judge Jon Lindsay

appeared to

be

t rying to read the minds of the

audience

whether

they were

th inking

Lindsay

o

Greenwood.

In the a l l of the luck

w

department: on the

second

day

of

the bar

exam

in Houston,

the answer

to

the

essay packet were

dis t r ibu ted , along

wi th

the ques t ionl Mistake caught in t ime to aver

everyone

receiving a

perfect

grade.

Lieu tenan t Je r ry R. Jones has

been promote

to the

rank

of Captain a t a ceremony held o

February 14.

Lieutenant

Jones i s the f i r s t Blac

in the his tory of the Houston Pol ice Department to

a t t a in the

rank

of Captain.

Richard Anderson rep laces

Walter Wiebush

a

legal advisor to the County Criminal Judges

Wiebush

i s

r e t i r ed

to

the

va l ley .

When

Anderso

was an ass i s tan t Dis t r ic t Attorney

in

th

appe l la te

division, he and Calvin Hartmann

rep l i e

to

a 48 page

br ie f with

a

s ing le

one- l ine r b r i e f

The

Appellant

has

f i red an impress ive

l ega

sa lvo, assa i l ing his convict ion , but t i s fo

naught,

for

the b a t t l e was l o s t before t wa

fought - THIS COURT

HAS

NO

JURISDICTION.

Sur

enough,

the

Court

had no ju r i sd ic t ion .

Lesson

before

you wri te a 48 page

b r i e f ,

chec

j u r i sd ic t ion .


6/40

by the Texas Board

of

Legal

Specia l iza t ion .

H.C.C.L.A. express

sympathy to the family

of

Judge

Carrol l Weaver (184th

Dist r ic t Cour t) ,

who

passed away af te r a long i l lness . Judge Weaver was

an excel len t t r i a l lawyer before becoming a

judge.

Many

years ago,

when I s ta r t ed

to pract ice

cr iminal

law, I surveyed

the

court r epor ter s

in

the misdeamenor cour ts to

ask who, in the i r

opinions , was the best

D.W.I.

t r i a l

lawyer.

The

almost unanimous opinion was

tha t

Carro l l Weaver

was

the

very best . When

he became

judge,

he

remembered

what

t

was l ike

in

pr ivate

prac t ice .

His fa i rness

to a l l wil l

be

remembered.

His

l i f e

t ime f r iendship

with

Judge Bi l l Ragan is an

example

to a l l

of the meaning of f r iendship.

Terry Proctor ,

the

aborted candidate for

the

230th ruled ine l ig ib le due

to

f au l ty

appl i ca t ion

form. Rumor

i s

tha t Walter Boyd furnished Terry

the

form

Hal

Hudson is

the published author

of

an ar t i c le in "Power

Lif t ing U.S.A.",

the

"Bible"

for a l l

those in tha t so r t of

thing.

The

a r t i c l e is on l i f t i n g

for competi t ion

a f t e r

you've

passed 40, and gives Hal 's schedule

on

the way

to

winning the World Masters

Championship

for the

post-40

group. pic ture i s fea tured l i f t i n g

about 1,000 Ibs looks l ike a "wild-man" Good

l ikeness, 1 ll.

Seen in the cr iminal courts bui lding l a

Friday, February 28, 1986,

was

Jus t ice Murry

Co

of

the Firs t

Court of Appeals. When asked

what

was doing in

the

cr iminal

cour t s

bui lding,

rep l i ed

tha t

he had heard

tha t

r ever s ib le e r ro

were committed

in

t h a t

bui lding and he

checking t out So far Jus t ice Cohen has

found

r ever s ib le er ro r in any case tha t I h

appealed Judge

Bi l l Ragan (County

Crimi

Court

i l

has been

reversed

only four t imas

in

years on the bench.

Candelar io

El

i

zondo

and Terry

Lea

El

inzo

has re located there of f ice to

Two

Houston

Cent

Sui te

1515,

909 Fannin, Houston,

Texas

770

te lephone

number 655-8085 . Jim

E.

Lavine

become

a

shareholder

in

the

firm formerly known

the

Law

Off ices

of Jack B. Zimmermann, P.C. and

now Zimmermann Ii

Lavine, P.C.

Lavine

has

a

become

Board Cer t i f ied as

a

spec ia l i s t in cr imi

Law by the

Texas

Board of Legal Specia l iza t ion

H.C.C.L.A. express sympathy to the family

Judge Carrol l Weaver

(184th

Dis t r i c t Cour t) ,

w

passed

away

af te r

a

long i l l ne ss . Judge Weaver w

an excel lent

t r i a l lawyer

before becoming

a judg

Many years ago, when I s ta r t ed to

prac t i

cr iminal

law, I surveyed

the

court repor ters

the misdeamenor

courts

to

ask who,

in

the

opinions ,

was

the

best

D.W.I.

t r i a l lawyer. T

almost unanimous opinion was tha t

Carro l l

Weav

was the

very

bes t .

When

he became judge,

remembered what t was

l ike in

pr iva te p rac t ic

His

fa i rness to

a l l

wil l be remembered.

His

l i

t ime f r iendship

with

Judge Bi l l Ragan i s

example to

a l l

of

the

meaning of f r iendship.

Let s nca fr il au

e

want

to hear

from you Please

send

us your ideas o r comments regard

ing

i s sues

of i n t e r e s t

to

the

cr iminal

defense prac t ione r and please l e t

us

know changes

in

address and te lephone.

e welcome your

par t i c ipa t ion .


7/40

ADVOCATE

y arolyn Garcia

Abraham Lincoln, presumably before

he entered politics on a full time basis,

said that a lawyer's time is his stock in

trade.

This concept has been freely translated

by the Texas criminal defense bar in the

words of a famous Chinese proverb: No

tickee, no washee.

This has carried over to cases where a

Texas trial judge has ordered that a per

son be executed by lethal injection before

sunrise on a given date.

The growing realization that the State

and Federal Governments are dead

serious about expediting these pre-sunrise

dates with the needle, has converted the

members of the criminal defense bar.

with a few exceptions, into Chinese laun

dry men. unwilling to assume the un

popular, unrewarding and unpaying

burden of fighting the State and Federal

judiciary as the State and Federal Con

situtions and the Writ of Habeas Corpus

are emasculated. step by step.

Several weeks ago, Kerry Fitzgerald

and Rusty Duncan asked me to con

tribute a regular column to fhe oice

dealing with capital cases. I agreed, on

the condition that I would be permitted

to

encourage

lawyers to assist in

representing condemned prisoners

in

post

conviction proceedings. The column

will

be centered around death penalty cases,

but the legal issues are applicable to many

areas of the practice of criminal law.

Advocate is orginally derived from

the latin verb, adv()(1Ire. meaning to sum

mon to one's assistance; the noun form.

advocalus, orginally signified an assistant

or helper

of any kind. even an accomplice

in

the commission of a crime. Its present

signification

is

a pleader

of

causes. In

Spanish and French. avocat means

lawyer. I like the word as a noun or verb,

hence the name of the column.

There are over 200 prisoners on death

row

in

the Texas Department of Correc

tions.

1110se

on dircx 1 appeal have retain

ed or appointed counsel. Those for whom

direct appeal resulted in affirmance are

usually represented by volunteer counsel,

if they have a lawyer at all. Far too many

have no counsel.

We have more than 30 capital cases in

our office. about

5

percent

of

the total

number of inmates on death row. Like

us, any other lawyers throughout the

state handle these cases without support

from local, county.

or

state bar associa

tions or from organizations dedicated to

civil liberties. Recently, three scheduled

executions would have taken place but

for the intervention

of

volunteer lawyers.

These condemned inmates went to every

state bar association and every group of

civil libertarians for assistance and found

none until a sole practitioner stepped in.

We are often criticized when we agree to

represent condemned prisoners with an

impending execution date. Many bar

association

leaders and individual

lawyers advise that lawyers refuse to help

in these cases. They suggest that we stand

by and

let

the prisoner die without a

lawyer. The reasoning is that the finan

cial burden on volunteer lawyers is too

great and that the system. if stressed

enough. will find a way to compensate

lawyers for this representation. Perhaps

some feedback from this column will

help lind a solution.

A reason often given for refusing to ac

cept a p i t l ca \e after affirmance by the

Court

of

Criminal Appeals. is lack

of

ex

periem:e or knowledge about the process.

Hopefully. this column

will

serve to

remove those fears. provide some

guidance and encourage lawyers to ac

cept this work or help find others who

will. I've volunteered my office panner.

Will Gray,

as

a regular contributor to the

column. I hope that others around the

state working

in

this area will share their

legal and

prai 1ical

problems.

Death penalty post conviction work

is

not really such an obscure area of the law

for thme who regularly practice trial and

appellate criminal law. The post convic

tion practice involves reviewing trial

records, interviewing witnesses, briefma.

conducting evidentiary hearings with

the

same kind

of

witnesses you might fmd n

any criminal trial, and persuading, by

legal and equitable arguments, the trial of

fact, The only difference is that

one

is not

entitled

to

a jury.

In post conviction proceedings, one is

usually opposed by fonnidable legal

scholars on the prosecutorial side, and

some times on the bench.

They provide a challenge not generally

offered in the courtroom in a

day

to

day

trial practice because

of

the issues involv

ed. The trend, of course, is

to

deny the

writ; the challenge. to find some running

room.

The writ

of

Habeas Corpus

is

the ex

clusive post-conviction remedy in a

felony case in Texas. For that reason, this

first column

will

provide introduction

information into the Great Writ.

t

is im

portant to keep in mind that the Writ of

Habeas Corpus is not a remedy just for

the condemned. The Writ should be an

integral and important part of any law

practice.

The writ can be used

to challenge ex

cessive bail, to compel the production

of

minor children in court on custody

mat-

ters. to test the legality of confinement

for contempt. to challenge confinement

on

a faulty indictment or information,

to

demand an out of time direct appea l (not

a substitute for appeaJ) and

to

collaterally

attack a conviction and sentence,

among

other things. The writ is a matter

of

right.

but does not issue as a matter or course.

The application for

writ

of habeas

corpus is

the notice to the person

holding another in confinement

to

pro-

duce that person and show cause why

the

confinement should continue. Habeas

Corpus means You have the body.

The writ is the precept to the confiner to

produce the body.


8/40

dvocate

For criminal cases, the procedure is

outlined in Chapter 11

of

the Code of

Criminal Procedure, and particularly

-

ticle 11.07. Article 11.01, Vernon's

Ann.

Code

of

Criminal Procedure defines the

writ

of

habeas corpus as:

the remedy to be used when any

person

is

restrained in his Uberty. It

is an order issued by a court or

judge of competent jurisdiction,

directed to anyone having a person

in his custody,

or under

his

restraint, commanding him to pro

duce such person at a time and

place named in the writ, and show

why he

is

held in custody or under

restraint.

In this first colwnn, we are providing a

form writ that can be used in state nd

federal court in postconviction felony

cases. In this instance, the form is filled in

to illustrate how the issues are framed.

The writ is med with the District Clerk

of

the county

of

conviction and

is

return

able to the Court

of

Criminal Appeals at

Austin, Texas. The District Clerk assigns

a file number ancillary to that

of

the con

viction being challenged, i.e. XXXX-A,

and transfers it to the trial court

of

the

original conviction. The clerk

of

that

court sends a certified copy to the state's

attorney in that court who has

15

days to

respond. f the state's attorney does not

respond, the allegations are still deemed

denied.

Within

20

days

of

the state's response

date, the trial court must determine

whether there are unresolved factual

issues which require an evidentiary hear

ing and if so, must within that time, enter

an order designating the factual issues to

be resolved. f the trial court fails to act

within the 20 days, then that failure con

stitues a finding that no factual issues

need be resolved.

Factual issues may be developed and

resolved through evidentiary hearings,

depositions,

interrogatories,

or

af -

fidavits. The fact findings of the state

court are given deference in

all

subse

quent proceedings. The Code sets no time

limit in which the trial court must act

after entering an order that unresolved

factual issues exists.

Whether or not an evidentiary hearing

is held, the record

of

the proceedings and

findings of the trial court, if any, are then

transmitted to the Court

of

Criminal Ap

peals and the Court may grant or deny

relief upon the findings and conclusions

of the hearing judge or may make in

dependent findings and conclusions. The

Court of Criminal Appeals need not

follow the findings and recommenda

tions of the trial court. f a writ

is

referred

to

the Court

of

Criminal Appeals without

a hearing being conducted in the trial

court, the Court may return the case for

an evidentiary hearing if the Court deter

mines that unresolved factual issues exist.

Exhaustion

of

state remedies

is

a

necessary prerequisite to seeking relief in

federal court. A postconviction writ

of

habeas corpus will be dismissed in federal

court absent proof that the writ was

presented and denied by the state convict

ing court unless the state waives exhaus

tion

of

state remedies. The law is clear

that

all

legal issues that should and could

be presented in the original or first writ

filed must be presented on the first

postconviction go-round. f one cannot

show substantial cause why the issues

were not presented in the first applica

tion, the writ will be dismissed for abuse

of

the writ , regardless of the merits

of

the issues.

Over the next several months, we will

print other forms, and suggest practice

and procedures for effective presentation

of

the writ. Hopefully,

we

can develop a

forwn for discussions

of

significant state

and federal statutory and case law

changes that will not only help in

evaluating constitutional issues for the

writ, but also for resolving how to deal

with the difficulties in finding representa

tion for condemned prisoners after direct

appeal, and for issues germane to the

general practice

of

criminal law.

Readers can contact me directly in

Houston or through

th oice

for par

ticular areas

of

interest

or

question. I

would like to include a question and

answer section at the end

of

each colwnn.

Readers provide the questions and I U try

to find the answer. Hopefully together,

we can advocate.

Those who choose to advocate, and

who commit themselves to the brutal task

of facing the State and Federal judiciary,

can save valuable time by adapting the re-

quired Federal habeas corpus form for

use in the State Application for Ha

Corpus. This first session includes a

dard writ form for filing in the conv

State court. See Appendix

A .

Next time

we

meet, the adaptati

this State Application to a Petition i

United States District Court

wi

demonstrated. Following that, the

cedure in the United States Court

o

peals for the Fifth Circuit will be det

s the Chinese say, a journey

thousand miles begins with a single


9/40

much

l e s s

the

Supreme Court .

We were taught on

TRI L T CTICS

y

im Skelton

Some

of

you have

l ived

the scene and some of

you

are

about to l ive i t . The door has j us t

slammed on what

i s ca l led the

plea

barga in ing

process

and

you f ind yourse l f sandwiched between

some

old worn

out

ex-prosecutor

who

th inks

he

i s

a judge and a group o f r ecen t ly

burg lar ized

c i t i

zens who th ink they can be

ju ror s .

The

D has j u s t

f in ished

his

voir

di r e .

This

i s a speech tha t a l l prosecutors make before they

get down to the ser ious bus iness

of

s t r ik ing a l l

blacks,

long ha i r s

.. Unitar ians and miscellaneous

minor i t ies

from the

ju ry

pane l .

I t

i s now your

tu rn . You must t a lk . Words

coherent

words -

must come out o f your mouth.

You

have

got to say

something.

The night before you

thought

of every

scam

known

to

man to get a r e - s e t .

Maybe I ll

have a

car wreck

or

Perhaps my Mother may

die, o r

even

i f she

doesn ' t

d ie , how

can

I

fake

her funera l?

You put in a despara te c a l l to your c l i en t , Have

you had your appendix removed? No such luck,

that

was

done

the

four th t ime

he

went to TDC.

Everything

has f a i led ,

and it i s too l a t e to tu rn

back.

Every cr imina l lawyer has gone through such

an exper ience and

i t is

high t ime tha t we

did

something to make t h i s welcome to

the

wonderful

world

of

cr iminal

law

l e s s

t r aumat ic .

t

should

be one of the major

aims of

t h i s organiza t ion

The

Harris County Criminal Defense Lawyers

- -

to

of fe r support

and

guidance

to the young inexper i

enced

pr a c t i t i one r . This

is the

so le

reason for

t h i s column,

so

we

can have

a forum where the

more exper ienced

lawyer can share t h e i r

mistakes

and

knowledge.

Think back to law school. What did you l ea rn

there tha t l a t e r helped you t ry your f i r s t case?

Who taught you the

predicate

for ge t t ing a tape

recording in to evidence? What law professor to ld

you about the have you

heard

ru le and

the

di f

fe rences

between a charac te r and reputat ion wi t

ness? Or,

how

to perfect

er ror

when

making an ob-

j ec t ion?

Most of

us were t o ld

long

and endless

s to r i e s

about

what

Jus t ice Black

said to

Jus t ice

Douglas about

Jus t ice

Frankfur te r ' s

opinion

of

the

exc lus ionary ru l e

and

how Black would say

snot things to

Frankfur ter

back in the robing

room.

Most of the t ime, these s t o r i e s were r e l a t

ed by someone who had never been before a JP Court

and on about the exc lus ionary

ru le but

were never

to ld

who

had

the burden of proof in a suppress ion

hear ing , or how a motion to suppress motion should

be writ ten, or how a suppress ion

hear ing i s

s t a r

t ed , or the p i t f a l l s

of

cu ra t ive admiss ions , or

that the defendant could be ca l led for

the

l i m i t

ed

purpose

of the suppress ion hear ing . We l e a r n

ed a l l these valuable

lessons

by

sending people

to

j a i l s

as we s tood there

with

our thumbs s tuck

in the lower par t of our diges t ive t r ac t .

None of t h i s i s taught in law school

because

most

of

the people t eaching there know

the

day to

day

mechanics

of t ry ing cases . They have

never

bothered

t h e i r great legal brains

with

the

mun-

dane t a sk o f t r y ing to help

some s u l l e n

kid who

was busted for t e s t dr iv ing someones car fo r sev

en months. I

l ea rned t h i s

when

one of my

profes

sors t r i ed to

defend his

g i r l f r i en d ' s

son . This

was a lso a

l esson in the

dul l ing

e f f ec t hormones

can

produce

in the

bra in . The D

was

ab le to i n

t roduce the

offense repor t as

a

business record

and thus

ended

t h i s mul t i - l e t t e red p r o f ' s

sk i rmish

with

the

r ea l

world.

I t

a l so

ended h i s c l i e n t ' s

freedom

as

he

got

10 big ones.

And

t he g i r l

f r iend

was

non

to

happy

e i t h e r ,

she moved up a

notch

by

tak ing up with a

plumber .

Law

school

i s

mentioned

for one reason. You

should

not

f ee l badly

because you have an i r r a

t iona l urge

to vomit in

the

judge ' s commode

when

the

b a i l i f f

br ings

in

a

j u ry

panel .

The

s imple

fact i s that you

are ignorant . Law

school has

made

you

tha t way. Law school

made

you a lawyer

without ever

having

to t ry a case. I t

has

taken

your

i na t e

ignorance and Socra t ica l ly

brought out

the

best

of it. Law school wil l t each you such

s tupid

th ings

as ,

Your honor, may t h i s e xh i b i t

be published

to the jury? Try

t h i s

little num-

ber with an East Texas

ju ry

and

see

how long it

takes them to ask

I s the death penal ty

poss ib le

for DWI s?

or Can

we k i l l

the

lawyer too?

My

f i r s t

sugges t ion

i s

to admit

to

your se l f

and your

brother

lawyers tha t you

are insecure

and

tha t you do not know what the h e l l

you are

doing. Then go

get some

help .

Find some e xpe r i

enced lawyer

who

has managed

to overcome

h i s l e g

a l t r a in ing

and pick h i s b ra in .

Most

defense

lawyers wil l

bend

over backwards to help you -

i f

you wil l ask. Of course , t he re a re a few who

are so wonderful tha t they wil l share t h e i r sec

r e t s

only with God

or

r epor te r s with

r ea l l y

grea t knockers, but t h a t ' s the except ion .


10/40

I know that

i t

i s dif f icul t

to admit your

ig

norance when

your

office walls are heavy

laden

with

plaques, diplomas, cer t i f ica tes and awards

extol l ing your

vir tues .

I remember

one of these

plaques collectors quite well.

Every time

he was

set for

t r i a l

he would panic, get diarrhea and

show up at my house. e

would

spend

the

night

s i t t ing on the john, whimpering and

flushing

un

t l

I

agreed

to

keep

him

from

losing

face.

I

helped him through

several

t r i a l s

- I had to ,

the

water b i l l got out of control -

and

now he is

doing

f ine .

The

next

step is an unlearning process.

You

must unlearn a l l that

gibberish

that you were

taught in law school. Knock off

a l l

tha t lawyer

l ike

language and relearn to ta lk l ike a normal

human being. Think of working with a jury in the

same vein as courting

your

sweetheart. Think

about

th is for a moment. What do you

suppose

would happen i f

you

whispered

sof t ly

in her

ear,

You are

the

sole judge of

the

credibil i ty of my

advances and the weight to be given

my

advances .

ow

many

years would

you

get? ow

many

cold

showers

would

you

have to take?

I f

most

of

us

courted

l ike

we t r ied law sui t s we would

have

to

embalm

our hearts and

bodies because

we would

never

need

them.

Hand-in-hand with

th is

leraning

to ta lk

again

process

comes the retuning our feel ings

process.

Simply s tated,

you

have to

unstarch your under

wear and re join

the

human

race.

The overal l

theory of

t rying a

case

is quite simple. I t is

one

human

being (the

lawyer) ta lking

to

a group

of

human beings

(the jury) about

giving a fa i r

break

to

another

human being

(the defendant) .

Un

t l you understand

th is you will never

be

suc-.

cessful .

There will

be numerous suggestions in future

columns

about th is

unlearning process and

help

ing you deprogram

your

legal education. Until

then, I

would

l ike to leave you with one f inal

t o u ~ t about the value

of

the esoter ic logic

that we are taught

in

law

school.

If a hen and

a half

could lay an

egg

and

half

in

a

day and

half ,

how long

would

i t

take

a monkey with a

wooden

leg to kick

a l l

the seeds

out

of

a

d i l l

pickle?


11/40

ASKING

FOR

GASKIN MATERIAL

M Y BOLSTER

THE STATE'S WITNESS

NEW

MEM ERS

WEL OME

By: Allen C. I sbe l l

When you request , receive , and read

"Gaskin"

mater ia l

before

the ju ry ,

and

then do not ask any

quest ions

based

on

the

previously writ ten

s ta tement or

repor t

by

the

witness ,

you

l eave the

impression t ha t

the

wi tness ' t r i a l tes timony

is

the

same

as his

statement

wr i t ten shor t ly

a f t e r

the event .

Unwittingly,

you

have

bols tered

his

tes timony.

How

do

you

avoid

t h i s , s ince the

ru les

a t

present do

not

allow a defense

lawyer

to have the

statements or

repor ts pr ior

to the

witness '

test imony?

You may f i l e a

motion

reques t ing

t ha t

the

cour t excuse the jury

so you may

request , receive,

and

read the repor ts before cross-examining the

witness. The

expecta t ion t ha t t h i s motion wi l l

be

granted in most cases is low.

To

preserve

the

issue for

appeal , s t a t e

clear ly

the

ground for the request and the harm

the

typ ica l

procedure

causes . A poss ib l e

statement

of t ha t ground i s :

By forcing me

to request ,

receive , and read the

"Gaskin"

mater i a l in the

j u ry ' s

presence, the Court is forc ing me to

bols ter

the witness ' testimony

i f I do

not

cross-examine him.

At th i s

point ,

a

t ac t i ca l

decis ion

must

be

made.

Ei ther

you accept the

typ ica l

procedure

which

require ' reques t ing and reading

the

repor t or

s ta tement in the presence of the ju ry ; or ,

you

s t a t e

for the record

t ha t

you bel ieve the harm is

so grea t , t ha t you wil l not

reques t the

repor t

or

s ta tement s ince you cannot receive

and read

them

outs ide the ju ry ' s presence.

You may

want

to

suggest various

procedural

s teps the

Court

could t ake

which

would permit you

to request , receive and read the

repor ts with

minimal

inter ference

with

the

order ly

progress

of

the t r i a l .

Sponsor

Terrance Windham

Johnny

G i l l

William

G. Rosch, I I I

J .Burne t t /F .Cant

Jay S. Nedell

Cathy Burnet t

David A.

Bishop

Cathy Burne t t

Paul

J . Smith

Cathy Burne t t

George

S. Hebert

Cathy Burnet t

Michael J . Brown

Jim Dougherty

Mark S. Byrne

Robert Scardino

Carol

A Neelley

Randy McDonald

Ellen

L. Swierczek

Ron Hayes

Kevin Howard

Robert

Pel ton

Raymond L. Fisher

William J .

Rice,

Margaret A. Poissant

Mary

K.

Quinn

Eliecer Barreiro

Candy El izondo

Mikahela

Speedon

Candy El izondo

Nickolas S. Barrera

Candy

El izondo

Joseph A. Rumbaut

Veryl

E. Brown

Kathryn

Geiger

Johnny G i l l

Angelica

Landa

Jose

Cantu,

J r .

Mi

l l e r Wallace

Robert

Pel ton

Robert

J .

Sussman Robert

Pel ton

Esmeralda Pena

Garcia Pel ton/El izondo

Rogelio Garc ia

T.M.

Reardon

Joel Pera l ez

Robert Pel ton

Will ie J .

Rhodes

Robert

Pel ton

Casbeer

Sne l l ,

J r .

Robert

Pel ton

Jose Cantu, J r .

Fe l ix

Cantu

Clarence

Thompson

Robert

Pel ton

William

Pavlov

Robert

Pel ton

Bob

Burdet te

Cathy

Burnet t

Neil C. McCabe

Jack

Zimmermann

Kenneth

R. Poland

Robert

Pel ton

John

Ph i l l i p s

Johnny

G i l l

Roy L. Abner Johnny G i l l

Juani ta

Jeys

Ber ta Mejia

Mary

E.

Conn

Robert

Pel ton

Cha.rles

Freeman

Johnny

G i l l

Frank

T.

Coleman

Wil l iams/Guerrer

Rose Marie Kennedy Randy McDonald

T. M Reardon Robert Pelton

Joe Hernandez Candy

El izondo

Katherine Scardino Johnny G i l l

Robert

J . Pandak

Cathy

Burnet t

Lawrence T. Newman Clyde Will iams

tings

COMBINED BOARD

MEETINGS - Juveni le , Family, Crim

nal , Civi l , County Criminal Judges, 2nd

TueSday

noon,

of each

month, Administrat ion Bldg.

c a f e -

t e r i a ,

Judge Love Chairman, permiSSion.

CIVIL

JUDGES

BOARD

MEETINGS

- Tuesday, of ea

each

month,

noon,

Administrat ion

Bldg.

ca fe t e r i a

Judge Sol i to , Chairman.

CRIMINAL JUDGES BOARD

MEETING

-

Wednesday o

each

month,

noon, Adminis t ra t ion Bldg.

ca fe t e r i a

Judge Jon Hughes, Chairman.


12/40

MEMBERS ON THE CURRENT GRAND

JURIES

by: Ronnie Harrison

Below is the Grand Jury Lis t

for

the

February, March,

and

Apri l Term:

208th (meets Monday

and

Thursday)

1. Ms.

Ina

K. Zellers (Asst .

Foreman),

4914

Gammage Houston, Texas 77021, Phone 747-56721

2. Mr. Harvey Petree , 1405 Atlanta ,

Deer Park,

Texas 77536,

Phone

479-6223;

3. Mr.

William Erwin,

5688 Green Tree,

Houston, Texas 77056;

4.

Mr. E. B.

Dick,

3014 Maple Grove,

Houston, Texas 77092,

Phone

681-2954;

5. Ms. Lenora

Sorola,

P.

O.

Box 9093,

Houston,

Texas

77261, Phone

923-6374;

6. Mr. Darryl Hurt

(Foreman),

3444

Ash Lane,

Deer

Park,

Texas 77536,

Phone

479-8116:

7. Ms.

Jer ry

Ann Mil le r

5135

Bayou Timber,

Houston,

Texas 77056,

Phone 961-0741;

8. Mr.

Aquino

Torres, J r . 14907

Windfern

Fores t , Houston,

Texas

77040, Phone 896-7615;

9. Ms.

Flora Clark,

5946 Southington,

Houston, Texas 77033, Phone 645-8504;

10.

Liz Latham, 706

Rutgers,

Deer

Park,

Texas

77536,

Phone 476-4607;

11.

Robert O. Blaicher, 5618 Wigton,

Houston,

Texas 77096, Phone 723-6345;

12. L.

Q.

Black, 2705 Sweetgum, Pasadena,

Texas

77502, Phone

944-9132;

209th

(meets Tuesday and Thursday)

1.

Mrs.

Ann Sweatt, 2806 Eagle, Houston,

Texas

77002,

Phone 529-8694;

2. Harold L.

Matthews,

3548

Ruth, Houston,

Texas 77002,

Phone

528-5195;

3. Louis

Brandt

(Asst .

Foreman),

302

Timberwilde, Houston,

Texas

77024, Phone 461-4455;

4. Wayne Wickman

(Foreman),

10100 Southwest

Freeway, Houston, Texas 77074;

5.

Tom Reader, P. O. Drawer 90969, Houston,

Texas 77290-0969;

6.

Bi l l Smith, 13626 Portshi re

Houston,

Texas 77079, Phone 464-3362;

7.

Claudette

Keis, P. O. Box 20167, Houston,

Texas

77225

..

8. Ada Kiat ta 803 W. Fr iar Finch,

Houston,

Texas

77025 Phone

680-0179;

9.

Mary

Louise Dial,

1300

Woods

Edge

Lane,

Houston,

Texas

77024, Phone 782-2240;

10. Robert

Mooring,

1202 Dorsetshire Or. ,

Pasadena, Texas

77504,

Phone

487-3186;

1.

Connie

Cummins,

11406

Greenbay, Houston,

Texas

77024;

12. Mrs. Marie Bani,

10051

Cedarda1e

Houston, Texas

77055J

228th (meets

on

Tuesday

and Friday)

1. Mrs. A1vera Ernest ine

Taylor,

Dwinnel1, Baytown, Texas

77520,

Phone

427-2836

2.

Ms. Donna Broussard, 11711 Pecan

Phone

558-5545

3. Janel le DeCastro, 16819

Rockst

Houston,

Texas 77084,

Phone 550-0455:

4. Bryon Calfee (Foreman), 702

De

Humble,

Texas 77338, Phone 446-2886;

5. O. B. Lee, 4818 Burning

Tree, Bayt

Texas 77521,

Phone

424-8231;

6. John

B.

Niday, J r . Box 262003, Hous

Texas

77009, Phone

644-3831;

7. David

Contreras, 3923 McLean

Baytown,

Texas 77521,

Phone

424-1686;

8.

Robert A. Barnard (Foreman), 1

Pinewind, Humble,

Texas 77346, Phone

852-1935;

9.

Ms. Bennie

Kadjar, 3404

Creek bend

Baytown,

Texas

77521, Phone 422-6766;

10. Robert McFarlane, 734 Internat ional

B

*64, Houston,

Texas

77024, Phone 683-0890;

11.

I sabel

Vara, 904 Maltby,

Houston, T

77011,

Phone

926-2981;

12. Robert F.

McWhirter,

7900 Bel la i re

Houston,

Texas 770361

230th

meets

Monday

and

Wednesday

1 Frank

Schulman,

8002 Skyline, P

782-8192;

2.

W.

Lane

Rivers

(Foreman),

13635

Rock, Houston, Texas 77079, Phone 468-5218;

3. David Galiado,

8503

Ferra ro L

Houston, Texas 77037, Phone 448-7677;

4.

Ella

Oliphant, 3915

Madden, Hou

Texas 77047, Phone

738-6502;

5.

J .

Wayne

Roberts ,

Phone 333-5814;

6.

Jo Laydde

Boies,

1702

Vassar,

Hous

Texas

77098, Phone

523-3339;

7. Inez

Bonney,

1601

Gregg, Houston,

Te

Phone

227-7374;

8. Victor ia

Richards (Asst .

Foreman),

Rio Vista

Phone 747-5994;

9.

Lydia Velasquez Myers,

10715

Sage

Be

Houston, Texas 77089;

10.

Albert

Charles Evers, 10402

H

Houston, Texas 77034,

Phone

946-4212;

11. Yolanda Manrique,

3851 Teakwood, LaP

Texas

77571;

12.

George

Binder, 3 Gessner , Houston, T

77024,

Phone

464-9215;


13/40

232nd

meeta

Wednesday

and Priday

1.

Mrs.

Frank

E.

-Hellen-

Nelson, 2701

Virginia ,

Baytown, Texas 77520,

Phone

422-8039:

2.

Abner

Anderson, J r . (Asst . Foreman),

5630

Benning Dr., Houston,

Texas

77096,

Phone

721-2380:

3.

Landon

V.

Davis,

J r . ,

13328

Oak Leaf

Lane, Houston, Texas 77015, Phone 453-1081:

4.

Claro

Carreon,

4402

Lido Lane, H ouston,

Texas 77092,

Phone 686-8378:

5. Mrs. James L. -Myrtle- Walker, 11702

Wendover,

Houston, Texas 77024, Phone

465-1126

6.

Ju l ias

Wilburn, 3722 Ward, Houston,

Texas

77021, Phone

747-4873:

7. Olga R. Gallegos, 8182 Ju l iabora,

Houston, Texas 7io17

Phone

644-8881:

8.

Mario

Quintero,

2 Mockingbird Circle ,

Houston,

Texas

77074, Phone

772-0940:

9.

Mrs.

Noble D. -Al l ine- Jones, J r . ,

408

South Burnet Dr.,

Baytown,

Texas

77520,

Phone

424-5763:

10. Edna Ruth Pr

ice ,

2603 Noble Street ,

Houston, Texas 77026, Phone 228-2577:

11. Robbie Ray

deVires ,

802 Piney Pt . ,

Houston, Texas

77024, Phone

467-1216:

12.

Fred Van

Osdell

(Foreman), 3822 Drummond

Houston,

Texas 77025,

Phone 665-2001:

RECEPTIONIST

W NTED FOR SMALL

DOWNTOWN L W

FIRM

IN THE

TEXAS

COMMERCE TOWER. C LL KATHERINE

SCARDINO

T

229-9292.

Listed

below

you

wi l l

find

a l i s t of the

Grand Jury Bai l i f f s and Dis t r i c t

Attorneys s

names, phone numbers and

address

and

Dis t r i c t

Clerk

s

off ice

phone

number

for

Grand

Jury

quest ions.

1. Bai l i f f s :

Henry

Callahan, Johnny Scot t ,

Cindy Thorpe (Phone

22l-5880)

2.

Dis t r i c t

Attorneys:

Jim Mosely, Chief:

Eldred

Hammond Allen McAshan, Chuck Cottingham,

Cheryl Turner

and Don

McCormick (Phone 22l-6170)

3. Dis r ic t Clerk s Office fo r Grand Jury

Questions (Phone

221-7857)

4. Grand

Jury

Address:

201

Fannin,

9th

Floor, Houston, Texas 77002

W NTED

PUBLIC

DEFENDERS

EXCELLENT POTENTIAL

FOR

MOTIVATED C ~ I M I N L DEFENSE

ADVOCATES.

THREE POSITIONS

FOR LRIYERS NEW GRADUATES

TO

TI:O

YE RS EXPER

IENCE.

ONE

POSITION FOR A

L WYER

WITH

TWO PLUS YE RS

EXPERIENCE.

SEND

RESUMES TO CHARLOTTE

HARRIS

PUBLIC DEFENDER

WITCHITA FALLS TEXAS

76301.


14/40


15/40

Judge Musslewhite , looks l i ke a courtroom

should .

TAL S y

Judge

helly

ancock

I

wil l

miss

the high ce i l ing , and the wooden pan

Tbanks

to

the

Harr is County

Criminal

Lawyers

Associat ion for

providing t h i s "Court Tales" c o l

umn. I f

I

am

d i l i ge n t meeting

deadl ines ,

the

county cr iminal

and

the c r imina l d i s t r i c t judges

can use "Court Tales" to communicate to

lawyers

such i tems as upcoming p o l i t i ca l events

or

changes

in courtroom

procedures .

For ins tance,

an

a t to r

ney ' s

presence i s requi red a t sentenc ing because

t h i s

i s a c r i t i c a l s tage of

the t r i a l . Most

of

the

county cou r t s r equ i re

a

waiver

for

the law

yer ' s presence on

the

judgment snd sentenc ing

date .

There

has

been

a shake-up of the

locat ion

of

some

of the

county cr imina l cour ts . County cr imi

nal

Court

#4 (Judge Franc i s Will iams) has moved

across the

ha l l

on

the

second f loor

of the

cr imi

nal

cour ts bu i ld ing . County Criminal Court #6

(Judge

Bob

Musslewhite) i s now loca ted on the 7th

f loor

where I used to be

located .

I

have moved

my cour t (County Criminal

Court

#7) to the second

f loor where Judge

Williams

held cour t .

This

spr ing there

wil l be another

f ru i t

basket - turn-over of some of

the county

cr iminal

cour t s

when

some

const ruct ion

in the

old f i r e

s t a t i on

bui ld ing i s completed. Expect cour ts

13

and 14 to have

t h e i r own courtrooms

then.

There

a l so may be movement t h i s spr ing among

cour ts

2,

11, 1

. .

,and, maybe, court 10.

The county courtroom on the

7th

f loor of the

cr imina l cou r t s

bui ld ing

that has been

occupied

by

th ree judges: Judge Jimmy Duncan, me, and now,

W NTED BLACK S T A T ~ T E S

PLEASE

CALL PAUL

SMITH

T

271-2413.

e l ing . I made the

move

because the

s t a f f ' s o f

f ices on the second

f loor

i s

much roomier and

be t t e r ar ranged than

those

accomodat ions

on t he

7th f loor . But, yes, a l l the

courtroom

on t he

second f loor have

tha t ce r ta in

p las t iC look.

Oh wel l , t h a t ' s

progress .

The d i s t r i c t cou r t s

have

moved t h e i r cour t

manager and his s t a f f to the

f i r s t f loor

of the

cr iminal cour ts bu i ld ing . This

space a t

d i f

feren t t imes has been the tax of f i ce , cons tab le ' s

of f i ce

and

neighborhood j u s t i c e cente r . Court

manager

Jack

Thompson inv i tes a l l a t torneys to

drop by and

say he l lo .

What does

the d i s t r i c t

court manager ' s s t a f f

do?

They do a l o t but

Jack

makes it

sound

simple by answering,

as s i s t

ing

the d i s t r i c t

cour ts .

Drop

by

and l e t

Jack

get more

de ta i led .

The cour thouse

is

mourning

everyone ' s good

f r iend, the

l a t e Judge

Car ro l l Weaver

o f the 184th

th D i s t r i c t Cour t . Months ago, Judge Weaver c a l

led Judge Hearn

from his hosp i ta l

room.

He asked

Judge Hearn to

conduct the funeral se rv ice . Judge

Hearn

did

a wonderful

but

d i f f i cu l t

job eulogizing

Judge

Weaver. I t

was

sa id

a t

the

funeral

t ha t

Carro l l Weaver was sometimes blunt .

But

he a l

ways

ta lked

s t r a i g h t and di rec t ly

from the hear t .

so t r ue .

Good-bye Judge Weaver.

You

l e f t

a mark on the

many

people

you

knew dur ing

your 30

plus

years of

prac t ic ing

law

and

being

a

Judge.

TEXAS DRUNK

DRIVING L W

may be ordered directly from the

Dubl isher. Wri

te

Butterworths

a t

11004

Metric

Blvd., Austin, Texas

78758

or

cal l

512)

835-7921.

DETAI LS:

Volume 1 -- tabbed 5 ~ x 3 1 looseleaf

approx.

320

pages.

Volume 2 -

tabbed

8 ~ x l l

looseleaf approx.

275

pages.

Published

January 1986.

$150.00

for

2-Volume

set .


16/40

ail ond Service

1404 CONGRESS

HOUSTON, TEXAS 77002

(713) 227 1777

We

would l ike to thank the HARRIS COUNTY CRIMINAL

DEFENSE

LAWYERS

for taking

advantage

of

our fee program. We feel

this

program

has

afforded

additional CASH FLOW to you by paying less for bail bond fees.

LAWYERS BAIL BOND SERVICE would

like

to extend our low cost ree program

along

with

immediate

jail

release

for

your

clients.

We

are confident

as

an

extension o your office

that

we can represent your clients in a proCessional and

courteous manner

of

which you would be proud.

LAWYERS BAIL BOND SERVICE can handle

your bail

bond needs anywhere in

the United States. Through

our Underwriting

Department, we can help you take

advantage or out of town or state resources not only

to

pay our fees but to

collateralize

or

pay your rees

as

well.

Please call 227-1777

or

our 24 hour immediate

JAIL

RELEASE SERVICE.

TER VIS ARE AVAILABLE: BILLING TO ALL ATI'ORNEYS:

800.00 BONDS

=

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1,500.00BONDS 200.00 + 20.00

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17/40


18/40

W ~ ~

WASTE YOUR

TIME

SITTING IN

COURT?

RE-ELECT JUDGE JIMMIE D U N C ~

COUNTY CRH1H1AL

COURT

AT LAvJ #3

"HE

HAS

SAVED Y UR PROFESSIOfJAL

TH1E

FOR 29

YEARS."

Paid for

by Judge

Jimmie Duncan Appreciation Committee Gerald Payte

Treasurer

12011 Prado Wood

Cypress

Tx. 77429


19/40

JUDGE BONNlb: FITCH

COUNTY

CRIMINAL COURT

AT

LAw

No. 13

1302 PRESTON

HOUSTON TEXAS 77002

713/221-7950

February

10, 1986

PRE S S R E LEA S E

Judge

Bonnie

Fitch has announced her

candidacy

for the

Democratic nomination

to the County

Criminal

Court

a t

Law

No. 13

bench.

Judge

Fitch ,

incumbent,

was

appointed in August,

1985.

The

Judge

received

her

legal

t ra ining a t

Texas Southern University

School of Law. She

has

been practicing s ~ n c e May 1975 and

has

experience

in criminal law. She i s married and

has

three

children .

Judge Fitch served as an

Associate Municipal

court

Judge

for four and a half years pr ior to taking the County r ~ m i n a l

Court bench.

She has also served as a

Master

in the Family

Dis t r i c t

Court

and as Master in Chancery in the

County

CiVll

Court .

Judge Fitch brings

to

the bench her

experience

as a

ci ty

Judge.

She describes herself as a

people's

person

and

enjoys

being

a par t of

the Judiciary .

She spends

her spare

time working

in

community

service organizations.

She

i s

a

member of the American Bar Association#

National

Bar Association,

HOuston Bar Association, Houston Lawyers Association and

Black Women Lawyers Association. She is l icensed to practice

in the State of

Texas,

the Southern D i s t r ~ c t of the

United

States , the Fif th and Eleventh Distr ic ts of the United States

and

the Supreme

Court

of the

United

States

KEEP JUDGE

ANGEL

FRAGA

COUNTY

COURT

14

JUDGE FR,I\GA HAS BEEN INTHE GEilERAl PRACTI CE

OF lAW CIVIL &

CRIMINAL

FOR

24

YEARS

SERVED FeR

(9) YEARS AS AN ASSOCIATE MUNICIPAL

COURT

JUDGE

(1974-1983)

APPOI1nED

BY

U N N I I ~ O U S

VOTE

OF

HARRIS

COUNTY

COMMISSIONER'S

COURT

(5-0)

ON JANUARY

1J

1986

TO

THE

COUNTY CRIMINAL COURT 14

THE FRAGA FAr'lIlY

IS

\1ELL KNOv N AND RESPECTED

IN

THE

COW1UNITY

LET'S KEEP JUDGE FRAGA -

HE IS

DOING AGLJDD JOB


20/40

fiRST COURT Of PPE LS

By

Henry

L

Burkholder, II I

Cases

reported 1/29/85

th ru 2/29/86

James

McQueen

v.

s t a t e ,

1/29/86,

J .

Duggan.

This

case demonstra tes the

PICK

AND CHOSE RULE OF CONSTRUING

THE

EVIDENCE

ON

APPEAL TO

UPHOLD

THE

JURY'S VERDICT OF GUILT.

D was i n d i c t e d fo r murder ,

but

found g u i l t y of a ggra va t e d

a s s a u l t . (Never mind why, t h a t ' s not i mpor t an t he re ) . S ta t e ' s

eyebal l

witness

saw D s t r ike W

with

a s t ick ,

l o t s of

blood, and

t h e CW

b e i n g a s s i s t e d home by f r i e n d s .

Ot her W's s a i d CW

compla ined

o f headaches

and

d izz ines s and

t h a t D s l e p t ll

t he

nex t day.

Medical examiner

t e s t i f i e d t h a t CW exp i red from c lub

wounds,

bu t

t h a t

t he

i n j u r y

had

to

have

been

i n f l i c t e d

8

to

24

hours before death. D argues tha t because

of

the ME's t ime frame,

t he evidence

was i n s u f f i c i e n t

to f ind t h a t

it

was

h i s c lubb ing

t h a t caused the dea th of t he CWo The

Cour t

o f Appeals held , t h a t

t he j u ry was

f r e e

to accep t t he ME's

cause o f

dea th , but

r e j e c t

his est imat ion of when the cause incurred .

STATE

MAY COMMENT

DURING JURY ARGUMENT CONCERNING COUNSEL'S

FAILURE TO GO BACK MORE THAN TEN YEARS WITH D'S CRIMINAL RECORD

ALSO, APPLICATION OF THE "IT 'S NOT REVERSIBLE UNLESS IT HURTS

RULE.

At tri l D t e s t i f i e d t h a t he had not been

convic ted

o f a fe lony

o r misd/mt in t he

l a s t

t en years . (Guess

what

happened to D 19

years

ago ). S

in

argument to the ju ry

t r i a l

hin ts tha t the re was

a good reason why D's a t t did

not

go back

pas t

10

years .

Court of

Appeals

he ld

it

was

e r r o r

fo r

t he s t a t e

to

argue to t he j u ry t ha t

t he

r u l e s

o f

evidence

was

h i d i ng

someth ing

from them.

However,

t he Cour t he ld t he e r r o r HARMLESS, s ince "no

new

and

harmful

fac t s

were

in jec ted.

NOTE:

A

d i f f e ren t

r e s u l t might

have

occurred had S to ld

the

jury

out r igh t

tha t

D had a convic t ion more than

10 years old.


21/40

APPLICATION

OF THE

OBVIOUS

AS

ALL GET-OUT' EXCEPTION

TO

THE

CORRECT GROUND CONTEMPORANOUS OBJECTION RULE.

Famil iar ru le

tha t

when an object ion i s made, the grounds for the

ob j ec t i on

must be s t a t e d , somet ime wi th u n r e a l i s t i c p r e c i s i o n .

Here,

D's

counse l

objec ted to S 's

j u ry

argument

concern ing t he

previous ly reviewed ground,

but

the

only

ground he could th ink of

qu ick ly enough was t h a t t he argument was hor r i b l e . CA noted

t ha t ob j ec t i on

was vague

and conclusory . Never the less ,

the

[ t r i a l ] cour t

should have

been made aware y

any ob jec t ion

a t

a l l

t ha t the

Sta te ' s

argument was improper. Error was

not

waived by

f a i l u r e . to make a

precise

enough object ion .

NOTE:

Att was

excused

from having to

tender

a more precise

ground,

but was not excused

from making

an object ion .

Tony

Ray Prejaean Sta te , 1/16/86, J . Levy

HARRIS

COUNTY

AGREED

RESET

FORMS HELD

WAIVERS,

FOR

STATUTORY

SPEEDY TRIAL PURPOSES.

Once aga in , t he Agreed Resee '

form

s tha t everyone must

s i g n

to

ge t out

of f e lony

c our t

he ld

t o cons t i

t u t e an exc ludab le

pe r iod

of t ime under the Speedy Tr ia l Act. Opinion does not address how

an a t t can s ign one of

these

forms wi thou t waiv ing

the

r e s e t

per iod of t ime .

One idea i s to

change t he

form

from Agreed

Reset

to

Not ice of ReseL Also, one might wri t e 0 demands a

speedy t r i a l on the

form.

Remember tha t the Act excludes per iods

of

de lay r e s u l t i n g from a

con t inuance g ra n t e d a t

the r eques t

o r

with the

consent

of

D.

Art ic le 32A.02 sec t ion 4(3) C.C.P.

D S

DEFENSE

THAT

t:E

HAD SPECIFIC

INTENT

TO

COMMIT

ONE

CRIME

DOES

NOT STOP JURY

FROM

FINDING THAT

THROUGH THAT

CRIME

0

ALSO

INTENDED TO COMMIT ANOTHER CRIME. THE DEFENSE THAT COULD HAVE

ONLY ONE

INTENT

AT

A

TIME

FAILS

ON

APPEAL.

o

conv ic ted

by a j u ry of a rson , a s p e c i f i c i n t e n t c r ime .

0

t e s t i f i ed tha t he intended to s t a r t f i r e in bui ld ing , but only as

a

means of commit t ing suic ide . Viewing the

evidence

in the l i gh t

most

favorab le to the ju ry ' s

ve rd ic t ,

t he j u r y

could have found

t ha t 0

intended to

des t roy himself

as

well as the

bu i ld ing .

Roy Lee

Fontenot

Sta te ,

1/16/86 J . Dunn.

STATE

DOES NOT NEED

A

JUDGMENT TO PROVE UP ENHANCMENT PARAGRAPH.

D'S PRISON RECORD

IS

SUFFICIENT.

Record i s

s u f f i c i en t to

uphold

an

enhancment paragraph ,

where

s t a t e

in t roduces a pen

packet which

is no more

than

D's pr i son

f i l e .

No

judgment in f i l e . However, nota t ion in f i l e shows

c t

and

cause

number.

CA held t h i s

was

enough.


22/40

Ex par t e Ernest

Five l ,

1/16/86, J .

Smith

FAILURE TO CONDUCT

24

HOUR

HEARING DOES NOT

ENTITLE 0 TO RELEASE.

o

f i l ed pre t r i a l

habeas

corpus,

demanding

re l ease

because

he

was

not given

a probable cause hearing with in 24 hours. 0

i s

en t i t l ed

to

PC hear ing

under

Gerson Pugh, 420

U.S.

103 (1975). 0 i s

en t i t l ed

to t h i s

hear ing

with in 24

hrs . ,

under Sanders v.

City

of

Houston, 543 F. SUpPa 694 (S.D.

Tex. 1 9 8 2 . 0 IS

NOT ENTITLED TO

RELEASE SIMPLY BECAUSE HE WAS NOT GIVEN A HEARING FAST ENOUGH D

e n t i t l e d to

r e l i e f on ly

i he a l l e g e s and proves no PC.

Bernard

Stuar t Coleman Sta te , 1/23/86, J .

Dunn

EVIDENCE INSUFFICIENT TO

CONVICT D

ON

DWI

WHERE

STATE COULD NOT

PUT D

DRUNK

BEHIND THE WHEEL.

APPLICATION

OF THE CORPUS DELICTI

RULE.

O f f i c e r s

a r r i v e on scene

o f

wreck. D, s t a nd ing o u t s i d e o f one

wrecked ca r , i n fo rms o f f i c e r s t h a t he was d r i v i n g , and t h a t he

ran i n t o

o t he r

veh i c l e . D was no t

a lone

in h i s

veh i c l e .

O f f i c e r

could t e l l D in toxed. EVI INSUFF

TO

CONVICT.

D s

s ta tement

could

pu t

him behind

the

wheel , bu t t he s t a t e could no t show when D

became in toxed.

Furthermore, D s ext ra judica l confess ion alone

i s

not

enough

to

c onv ic t . S t a t e must c o r rob D s s t a t e m e n t wi th o t h e r ev idence

showing

the

t ru th

o f

sa id s ta tement . Here, no evi

to

corrob

what

D

said.

Dif ferent

r e su l t i f (1) car was reg i s te red

to D

and

D

was

alone, o r

(2)

eyewi tnesses

t ha t

D

was

dr iv ing

alone.


23/40

OURT

OF

CRIMIN L PPE LS

By Cathy

Burnett

David L. SCHUESSLER No.

289-83

- Opinion on Sta te s

and Appel

Ianfrg--Pet i t ion

for

Discret ionary Review: Reversed/Judgment of

Acquitall Entered - Judge W. C. Davis [T.

Davis,

Teague and

Campbell

concur

in

resul t ;

Onion, McCormick and White dissent] -

2/5/86

SUFFICIENCY OF EVIDENCE: WH T IS

THE

PROPER STANDARD OF REVIEW

WHERE SUFFICIENCY OF EVIDENCE

HAS

BEEN

CHALLENGED

ND N

AFFIRMATIVE

DEFENSE IS

PRESENTED?

This was a murder prosecution

in which

victim

was

D s

4 year

old daughter;

D

raised insanity

defense

.

Cour t of

Appeals

reve

rsed and remanded,

concl ud ing that

D s

affirmative defense of insanity had been adequately

established

and

thus,

the jury finding on insanity was contrary

to the

great

weight

and preponderance

of the evidence. The same

issue

was

before

TCA in Van Guilder No.

899-84;

delivered

11/6/85).

The

t e s t , reject ing

the CIA

approach as

creating

i t se l f as a 13th juror with veto power over the

verdict ,

i s :

When the sufficiency of the evidence to support an

aff i rmative defense

i s a t issue

the appellate court must

review

a l l the evidence

presented

which bears on the

aff i rmative defense

in

the l ight most favorable to

the

impl ic i t

finding by

the

jury with respect to such

defense. Then, the appellate court

must

determine i f

any ra t ional t r i e r

of

fact could have found that the

defendant fa i led to prove his defense by a

preponderance

of the

evidence.

Here

the

TCA reviewed

the

evidence

and found

i t

legal ly

insuff ic ient . Among

the

important

factors were: Sta te did

not

produce

any rebutting evidence, in fact i t s evidence tended

to

confirm D s

insanity

in many respects; Sta te s

doctor declined

to

express opinion

on D s legal

sanity and

s ta ted he believed

in

the

judgment of some of

the defense doctors without

question, he

also

diagnosed D as suffering

from

acute

paranoid psychosis;

two

j a i le rs

who

t e s t i f i ed

tha t

they observed no bizarre behavior

from

D saw him

af ter

he had been

receiving

treatment for 3 months;

evidence from

the defense

standpoint

included

rec i ta t ion of

several instances of

bizarre

behavior from both s trangers and

family members.

Cecil

Lavelle

ARCHER

No.

211-84

-

Opinion

on

Appellant s

pet i t lon-rof lDiscret ionary Review: Affirmed - Judge W.C. Davis

2/5/86

VIOLATION OF -THE RULE-: EXPANSION OF

THE

H RM ANALYSIS:

Art.

36.03 C.C.P. is

the

provision concerning witnesses placed under

-the

Rule-,

TCA

expands

the harm

analysis for

appellate review;

the standard was previously

found in

Haas v.

Sta te ,

498 S.W,2d

206

(1973)

The

former standard

was:

(1)

Did

the

witness

actual ly

hear

the testimony of

the

other witness, and


24/40

(2) Did the

witness s testimony

testimony of

the

witness he

actual ly

he

contradic t the

ard.

TCA

when

found

f i r s t

rule too narrow

because i t did

witnesses

conferrred

among

themselves

not

provide

for

without

court

permission. The second

c r i t e r i a

was too

res t r ic t ive because

when

two State or defense witnesses confer

outside

the courtroom on a

matter

pert inent

to the

case

their

testimony

is l ike ly to

COINCIDE not conf l ic t . Thus the Haas rule

has

been

expanded as

follows:

(1)

Did the

witness

actual ly

hear

the

testimony of the

other witness, or

did

the witnesses

confer

among

themselves without court permission; and

(2) Did

the witness s testimony

contradict

the

testimony of

the witness

he actual ly

heard,

or i f

two

or

more s ta te witnesses

viola te

the rule by conferring on

Documents

1986 March Docket Call