1999 novdec docket call
TRANSCRIPT
8/11/2019 1999 NovDec Docket Call
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C LL
riminal Lawyers ssociation
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.
.
..... -
DOWNTOWN M RKET
SQUARE
a Carafe
813
CONGRESS
HOUSTON
TEXAS 77002
713-229-9399
KEY
MAP:
493l
e one of the in crowd
A cozy
and
historic beer and wine bar.
a Carafe
boasts
the best jukebox in town.
On
Old
Market
Square.
Men's Furnishings
• Tailoring
Shoeshine by
Weldon
305 Travis Street
Houston, Texas 77002
713-227-5867 • 713-227-5022
DOCKET
CALL
November / December 1999
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HCCLA OFFICERS
1999 2000
PRESIDENT
Danny Easterling
PRESIDENT ELECT
Richatd Frankoff
VICE PRESIDENT
Mark Bennett
SECRETARY
Rosa A.
Eliades
TREASURER
Angela Cameron
PAST PRESIDENT
Lloyd
Oliver
BOARD OF
DIRECTORS
Ma.ry Aco
s
ta
Lott Brooks
John Carro
ll
Winswn Cochr
an
E.
Ross
Craft
Ron Hayes
David Jon
es
Ja
y Karahan
Ellis
McCollough
Ga rland Mcinnis
David Mitcham
Tyrone
C.
Moncr
iffe
Richard L Moore
Anthony
O sso
Rick Soliz
Clyde Williams
PAST
PRESIDENTS
1971
1997
C.
Anthony Frilioux
Stuart Kin a
rd
George Luquette
Marvin O. Teague
Dick DeGuerin
W.
B.
Hou
se, Jr.
David R.
Bires
Woody Den
se
n
Will Gray
Edw
ard A. Mallett
Carolyn Garcia
Jack B. Zi mmerman
Clyde Williams
Robert Pelton
Can
del
ario El izondo
Allen
C.
Isbell
David Mitcham
Jim E. Lavine
Rick Brass
Mary E. ( :onn
Kent A.
Sc
haffer
Dan Cogdell
Jim Skelwn
G
eo rge
J
Parn
ham
Garland D. Mcinnis
Robert A. Mo en
November / December 1999
DOCKET
CALL
November / December 1999
Contents
From the President
. . . . . .
.
. .
.
.
. . . . . . .
2
HCCLA 11th
Annual
Galveston
Seminar
.
. .
5
Representing Indigent Clients Who Post Bail .
6
Fed Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
Meet the Judges . . . . . .
.
.
. . . . . .
.
10
The Investigator's Corner
11
Top Ten
Things to Know
in
a Capital Case
12
Hearsay .
.
. . . . . .
.
.
.
.
.
15
Upcoming CLE .
.
.
. .
.
.
.
.
.
.
. . . .
.
.
.
15
Sheep
in
WOlves' Clothing
16
Point
and
Counterpoint
. .
.
. . . .
17
Let's
Hear
From You!
Call us with
your
suggestions on this publication.
DOCKET
CALL
Publisher
HCCLA
Editor Emeritus Allen Isbell
Editorial
Staff
Rosa Eliades) Melissa Martin
Advertising
Staff
Mary Acosta) Jack Carroll
Distribution
Angela Cameron) Patrick McCann
Design
and
Layout Jeffrey
Tesch @
Vyvid Productions
(713) 526-148
Distribution: 750 copies per issue. • For article and
other
editorial contribution,
contact
Ro
sa Eliades at (713) 222-0610 or Melissa Martin at (713) 224-0888.
To place an ad, call Martin Mayne at (713) 224-8400.
ADVERTISING RATES: (Rates are subject to change)
FuJI Page:
1/2 Page:
1 4 Page:
Business Card
Size:
$300.00
$150.00
$75.00
$37.50
- - - . - , ~ - ~ - ~ : ~
. . ~ - ~
DOCKET CALL·
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From
the
President
The President's Opinion
D NNY
EASTERLING
The times they
are a ch
ang
ing.
By the
time
you
read th is the
candidates
for
the
District AttOrney
of Harris County
will be lining
up
to
declare for
the
March 2000
Primary. John B.
Holmes
has
annou
nced h is
retirement
and
no
matter who
wins
th
e
2000
election,
the
DA's office in Harris Co un ty w
ill
never be
the same.
Holmes has been the District Attorney
during
my en t ire legal career
that
began in
1980 so I have
no one
else to
compare
him
to,
but
it wi ll be interesting to see
who
his
successor will be. Whether you liked his
views or opinions a lot of times did not
matter, because wha t yo u
gO
t from
John B.
Holmes
was straigh t
and
to the point. He,
of
course, was an aggressive advocate for
the
st:u<.:
and
in cerrain areas had some vety strict
and
impractical policies. H owever,
Johnnie
would always te ll me
and
others
that
none
of
his
policies
sho uld eve r
produce
a
damned
fool result . You've go
tt
a like
that
in a
man, and
we are a
ll
go ing
to
miss his
reign.
The other major cha nge
that is almost
upon
us is the mass
movement int
o the new
Harris
County Crimina]
Justice Center. The
District
AttOrney's Office is schedu l
ed
to
make the move
December
1999,
and,
after
a
of the Holidays and th e
2000
Millennium
blowout,
we all will
be moving
our
tr
ade
into the new big one. The things I
know
that none of us will m iss are
as
follows:
Running back and forth
between tWO
or
more court buildings; ta lking
to
a
client
through
a stin ky
crowded
ho
ld
over ce ll ;
chained i
nma
tes being sh
um
ed
through
the
courthouse
corridors
in
front of a
ll
the public
and potential jurors to see; inmates in jail
clothes cha ined to a chair
or
the jury box
wh ile you begin
your
voir dire; riding slow
and crappy
elevators; picking a jury from a
panel
of
55 in a co urtroom the size of a
cracker
box;
having prosecutors
sit so close
to
the
j
uror
s
during the
trial
that
they are
breathed upon and last, but not lea
st,
practicing
in
a
dreary and depressing
environment
that we outgrew years ago. The
one
mistake in design on the new
cour thouse
is
that there wi be no cafeteria, only a very
small
vending machine room. The history
of the old basement cafeteria comprises
many
B.S. sessions, plea bargains, triaJ
preparation
and client consultatio ns. These
types of
things
will be
diff
er
ent
in
the new building,
as each
courrroom
wi ll have
an
adjoi nin g
conference room
and
a trial-ready room,
and,
due
to
the
efforts
and
funds
of
the
Houston
Bar Associat
i
on C r i mi na
l
l aw
Procedure
Sect
ion
, there will be a 3,000
square-foo t trial-ready
room
for the benefit
of defense a ttOrneys. T h
is room
will
conta
in
private
cubicles
with telephones,
a large
lo
un ge/co
nference
room and
a
yet-to-
be
determined room that
wi ll hopefully cont ain
a copier, fax machine, coffee POt etc.
T he
one hundred
million dollar
question
for us is: Will
the
fancy n
ew
building inst ill
and
in
spire an
increased sense
of fa
irness o n
the
part
of the state judiciary, as we ll as jurors
who sit
and
decide the fate of their fellow
human beings? I for
one
in this organization
cerrainly
hope
for
such
a
change,
even
if
it
may be subtle, as there
is
no way
that
it
co
uld
get
a ny worse. T he
new Millennium
wil l
bring
us
that
answer, and this associ
ation
should be in th e
forefront
of cons ta ntl y
seeking
ways to ensure
th
a t the
citizen
accused teceives his fair
shake
when
the
crow
n
attempts to bring down
th e h
ammer.
If you've been
on
the fence abou t whe
th
er
to go o
nlin
e
with the Internet
let me give
you a
no
ther r
eason
to do so as
soo
n as
possible.
The
H
CCLA
has starred an e-mail
program
called H
CClA@listserv
i
ce.com
.
Approximately 175 members out of our 400
members
have
addresses,
and
th
is
program
a ll
ows our
members
to
commun
icate ide a
s
vi
ctor
ies, insights intO
cerrain habits a
nd phi
losophies
of
judges
and
prosecutors and of cou
r
se
messages about
any upcoming ClE programs o r other
HCClA
events. If you care
to send
Ollt
any
message
to
a
ll of our members
th en
send
it
via the H CClA@ listse rvice.com add ress,
C. R. Markham & Associates
Private Investigations
s UUKJe , HIlI
1807 West 34th Street Suite C
Houston
Voice: 713) 613-02
X 713) 683 1U9<1
•
Court Appointed C
• •
e
•
Criminal Inveatlgatlons
•
Civil Investigations
•
Accident Inv_tlgations
•
Missing Persons
•
Asset Location
•
Countermeasures
•
Process Service
Surveillance
•
Personal Protection
•
Bilingual
•
but if
you
wis h
to respond to
a specific
member
then
please
only
address it
to
that
specific
member's e-mai
l address so
that
it
is
sent
on ly to
that
person.
We have
a lso contracted w
ith
a
new
website designer, as our website at
www.HCClA .
org is
c
ur r
entl y
outdated, and
we
hope
to make
major
chan ges a nd update
the
ent i
re
website in
the
near future. I wi
ll
keep yo u
posted on
tha t project.
I am pleased to report th a t HCClA has
hi r
ed
Jay
Skel
ton
t be
our parrtime
adminisrrative
assista nt. Ja y
offi
ces
with
his
brother, former
HCCl A President,
Jim
Ske ltOn,
at
J
6 10
Richmond
a
nd
answers
th
e
HCCLA
line
at
7 13/227-2404 at an
ytime
during th e day. Fee l free to ca
Jay
abo
ut
dues, C l E or a ny other administrative
questions you
may
have.
A
nd
l
as
t but not least, the Officers and
Board of Dir ecto rs of H C C l A have
proposed
a
name
ch
ang
e for this magazine.
We co llectively feel th
at
Docket
Ca ll
is
an
outdated
name
and is
not synon
ymous
with
wha
t
we are
really a ll
about.
We are
encouragi
ng input
from the
members in
order to
christe n this
magazine
wi th a
new
name , so please l
et
us
know
of
your
ideas.
Keep
the
faith
and don't
ever give up.
2 •
DO KET
CALL
November / December 1999
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1999
:Harris
County
Crimina
[
Lawyers
Ylssociation
Christmas
Party
rruesC£ay t])ecem6er 7
1999
5:30
p.m.
at ((Spy"
112 rrravis
Catered
J{ofiday 13uffet
2.00 13ee" Wine andWe[[
1Jrin/(§
Vise Jock?y and
Music
Specia[ quest V.J. - rrFze 2Wund
Mound
,
Sound"- Jutfge rJJoug Shaver
> •
Open
to
Members
and
anyone
efse!!
~ 10.00 !4dmission with advanced tick?ts
t and at
the door.
1)on't
miss
this fina[
999
'l3[owoutf
November December 1999
D
O KET
CALL ·
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hat
is
the HCCLA
The HCClA
is anonprofit,taxexempt,
professionalassociationmadeupof lawyers
fromHarrisCounty,Texas,whoareworking
ro
promote
excellenceandhighidealsinthe
practiceof criminal
law.
Anydefenselawyeringood
standing
with
theStateBarofTexas,whois endorsedbya
member
of
HCClA is eligibleto join.The
endorsement recommendsthe applicant
as
a person of professional competency,
integrity
and
good moral character who is
activelyengaged in thedefenseof criminal
cases .
hatdoes a member do?
• Participates
and
exchanges
information
andskillsin
our
ClE programs.
Application
Applicant:_
_______________
__________ _
MailingAddress:
_ _ _ _ _ _ _ _
Telephone: _
__
__
_ _
FirmName: ___ _
Date
admitted to
Bar : Law School:
_
Date, Degree fromLaw School:
_
ProfessionalOrganizations inwhich you areamember ingoodstanding:
_
• Performsagreed Pro BonoService.
Have you everbeen
disbarred
or
disciplined byany bar association
or
areyou the subject
• Brings to the Association's
atrention
proper grievances in the practicewhich
of disciplinary action now pending?
__
_
meritresponseandaction.
• Takescalls
on
our ReferralService.
Typeof Membership:
hat
does HCCLA do
Student ($25.00 Annual
Fee)
for the defense bar?
(Expectedgraduation date __ _
• Referrals
through our lawyer
Referral
Newly licensed (first year)
Membership
($50)
Service
and through our membership
directory.
Regular Membership ($125 .00)
• HCClA Publications
including
ocket
Call
a
bimonthly
newsletter addressing
topics of local interest to the
criminal
defensebar.
• Provides a
responsive
local forum for
date
signatureof
applicant
lawyersactivelyengaged inthepractice
of
criminal law.
Endorsement
• Opposeslegislationand local ruleswhich
infringeon individualrightspro tectedby
I, a
member
ingood
standing
ofHCCLA believethisapplicanttobe apersonof professional
constitutionalguarantees.
competency,integrity
and
good moralcharacter.
The
applicant is
actively engaged in (he
• Promotesaproductiveexchange
of
ideas
and
encourages
better communication
defenseof criminalcases.
with prosecurorsand thejudiciary.
• Provides continuing legal education
programs for
improving
advocacy skills
and knowledge.
date
signature
of
member
• Promotesa
just
applicationof the
COUf -
appointed
lawyer system for
indigent
MAIL TH I S APPLICATION
TO:
personschargedwithacriminaloffense .
HCClA
• Files Amicus Curiae Briefs where
P.O. BOX 2273 •
HO U
STO N , T EX S 77 027
appropriate.
713-227
-2404.
4 • DOCKET CALL
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HCCLA 11th Annual Galveston Seminar
Highlights from the
HCCL th nnual
Galveston Seminar
Approximately seventy attendees enjoyed the
seminar at the Galveston Country Club and also
enjoyed after the seminar the President s Party at
Danny Easterling s beach house.
November December 1999
DOCKET
C LL •
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Representing Indigent Clients Who Post Bail
E
G GAIL)
HUFF
An indigent is a person who is not
fin:lncially able to
employ
counsel. l A
judge
must
appoint
counsel
to
represent
an
indigel\t person charged with an offense that
is
punish
able by confinement.
2
A COUrt
appointed counsel who learns either
that
his
client was
not an
indigenr when counsel was
appointed,
or
that his clienr has become a
non-indigent during
the
course of
represenration,
must
inform the judge:; The
duties
of
the
judge
to
appoint
counsel
and
of the co ur t-a ppointed counsel to report
financial ability
to
employ counsel are clear.
You may also have a
duty
to assert your
indigent client
s valid claim to retain his
(()urt-<Ippoinred counsel after he has posted
bail.'
I
is
the policy
of
several judges
to
require
any defendant who has been released, even
on a pretrial bond , to
employ
counsel. Some
judges will openly declare at docket caJi
that
your
client is no
longer
indigent, because he
posted bail. Other judges have the COurt
coordi n,ltor discreetly info rm your client
that
he will
go
back to jail
if
he does not employ
counsel by the next setting.
BEFORE you
accept your first COurt
appoilltl11 ent , you
must
decide whether you
will:
I
accept the judge's oral order and cease
represent:1tion of your client without even
ascertaining whether he has a valid claim to
retain his court-appointed counsel;
OR
2. assess his ability to employ counsel and
assert
any
valid claim he may have to retain
court-appointed
counsel, despite his release
on
b3il.
If
your client is not financially able to
employ counsel, he has a valid claim to
retl:ntion of his court-appointed counsel,
despite his ability to post bail.
l
If
you fail to
assert your
di
em's valid claim to retain court
appoilltcd
counsel,
you may
find
yourself
answering
a complainr
to the grievance
committee.
G
How will you defend yourself
before th e gri evance committee) Will the
grievance
committee ignore the
clearly
esrablish ed bw and honor a judge's policy
:IS a IOGllrule) Wil 'll the grievance commirree
exonerate you for failing to assert your client's
valid claim, because to do so would
mean
that you could no longer receive
appointments from some
judges?
Wheth
er you choose option
I.
or 2., you
will need a record of the judge 's order
revoking your
appointment.
In
Harris
County,
your client's affidavit of indigency
and
the judge's order
appointing
you to
represent him are generally reflected in the
court's file on the same form.
If
you choose
option I ., and fail to appear on the client s
behalf
after the
judge
orally revokes
your
appointment, you will need a record
with
which to defend yourself from a complaint
that you
abandoned your
client. If you
choose
option
2.,
you
may need a record to
file
with your
client's application for
writ
of
mandamus or writ
of
habeas corpus.
If
you choose
option
2., both you
and
your
client must be prepared to assert his claim
effectively. At the first setting after your client
is released
on
a bail
bond, you must
be
prepared to obtain a
record of
any
reconsideration of
your client's indigency.
You
may want
to
have
a
court reporter
present
at
docket call to record
everything
that is
said after
your
client's
name is
called.
You may want to have one or more
attorneys
present, prepared to make affidavits.
Absent
some anion
on
your part, there will be no
record of the judge's
reconsideration
of
your client s indigency at
docket
call .
Your
indigent client should
be prepared
to testify at the first
docket
call after he pOStS
bail regarding:
I. the source of the money for his bail
bond.
If his family
members
and
friends
pooled
their
money,
have
one of them
present at
docket
call , ptepared co testify.
2. his efforts to ob tain employment, if he
is
unemployed. He should keep a list of the
bu s inesses he contacts. This list should
incl ude
the
date, the
name of
any supervisor
he contacts,
and
whether the bu s iness
accepted
his application.
3 his expenses. He should list his monthly
expenses for rent, food,
transportation, child
support, debts, etc. He should save all
receipts for these expenses.
4.
his
efforts to manage
his
finances
through Consumer
Credit Counseling,
if
he
is employed. This
organizat ion will assist
him
in
preparation
of a
budget, and
the service
is free.
5. his
comacts with
attorneys to
obtain
an estimate of the fee he
would
be charged
for represemation. He should
contact
at least
ten
attorneys. This list
should
include
the
date and
the fcc each attorney quotes.
After all your effort, some judges may still
revoke
both the order
appointing you and
your
client's
bond.
A writ of mandamus
is
the
proper method
for seeking legal relief if
the judge revokes your
appointmem
because
your indigent
cliem posted bail.
7
A
writ of
habeas corpus is the proper
method
for
seeking
legal relief if the
judge
revokes
your
indigent client's bond because he S
financially
unable
to
employ
counseL
Footnotes
1 Article 1.051
(b),
Texas
ode
of
Criminal Procedure.
2 Article
1.051 (c),
Texa Code of
Criminal Procedure.
3 A lawyer shall not as i t or Ollnsel
a client
co
engage in conduct [hat rhe
lawyer knows
is
criminal or fraudu lent.
Rule 1.02(c),Texas Rules ofP rofcssional
Conduct.
4 ....
The court
may nor deny
appointed counsel to a defen
dant
solely
because
the ddendall(
has pos ted or is
eap<lblt: ofposting bail. Article
26.04.(b),
'Texas
Code
of Criminal Procedure.
5 El Parte Bain
568
S.W.2d 356
(Tex.Cr.App. I 978)(en bane); Harrje/z
•
State 572
S.W.2d
5.35
(Tex.Cr.App.
1978).
6 In representing a
diem,
a lawyer
shall not:
(I) neglect a legal matter
enrr
us[ed
to
the lawyer; or
2) frequently
fail
to
carry
out
completely
th e obli
gatio
ns
that
the
lawyer
owes
to a
diem
or clien ts.
Rule
1.01 (b), Tex3s Rules of Profe ional
Conduct.
7 Stearne.l· v
Clinton
780 S.W.2d
216
(Tex.Cr.App.
1989)(en
bane);
BUI/tion
v. Hannon
827
S.W.2d 945
(Tex.Cr.App. 1992)(cn banc).
8 x Parte King
550
S.W.2d 691
Clex.Cr.App . 1977).
6 • DOCKET :ALL
November
/ December 1999
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Representing Indigent Clients (continued)
ACCUSED'S
MOTION FOR RECONSIDERATION
OF
INDIGENCY
AND
TO RETAIN COURT-APPOINTED
COUNSEL
TO THE HONORABLE
JUDGE OF THIS COURT:
Accused, per Anicles 1.051
and 26.04
of the Texas Code of Criminal Procedure, requests the opponunity 0 d e m ~ n s t r t e continue
indigency
on
the record, through exhibits
and
testimony, at the next
sening
of
the
instant cause,
and that
the
coun
s
order
appoIntin
counsel not be revoked until such opponunity
is
granted, and would show:
I On , Accused was determined to be indigent;
2.
State has nOt shown that Accused is no longer indigent;
3. Accused
has
not been afforded a nearing at whicn 0 demonstrate continued indigency; and
4. The ability ofAccused or Accused's family to make bail, standing alone, is not sufficient to
deny
Accused coun-appointed counse
WHEREFORE , PREMISES CONSIDERED, Accused respectfully requests the court to
conduct
a hearing,
on
the record, on th
question of Accused's continued indigency, and to po stpone revocation
of
the order
appointing
counsel until such hearing
is
held and
determination is made on tne question of Accused's continued indigency.
Respectfully submined,
CERTIFICATE
OF
SERVICE
A copy
of
this motion was served on State's
anorney
on _ _ _
AUTHORITY
IN
SUPPORT OF
ACCUSED'S
MOTION FOR RECONSIDERATION OF
INDIGENCY
AND TO
RETAIN COURT-
APPOINTED
COUNSEL
TEXAS CODE OF
CRlMINAL
PROCEDURE
Article 1.051.(b) . For the purposes of this anicle and Articles 26.04 and 26.05 of this code, "indigent" means a person wno is n
financially able 0 employ counsel.
Article 1.051.(c). An indigent
defendant
is entitled to have an anorney appointed to represent him in any adversary judicial proceedi
rhar may result in punishment by conflnemenr....
Article 26.04.(b) . . ... The court may
not
deny appointed counsel 0 a
defendam
solely because rhe defendant has posted or capable
posting bail.
x
Parte Bain
568 S.W2d 356 (Tex.Cr.App. 1978)(en banc). In making the determination of indigency, the Statutory wording
Anicle 26.04, supra, should be considered. An accused may be toO
poor
to employ counsel to represem him
and
yet not be complete
destitute. An accused may have some available funds, but not
enough
to secure counsel in view of
the
nature
of
the charge pending again
him.
Harriel
v
State
572
S.W2d
535 (Tex.Cr.App. 1978). [HJe was able to
obtain
a
$5,000
surety
bond
to secure his release from j
pending trial. The ability to secure such a bond is not, standing alone, sufficient to warrant a refusal to appoint counsel [citation omined
but may be considered by the trial court in
determining
whether an accused is indigent.
x Parte King 550 S.W2d 69l (Tex.Cr.App. 1977).
[AJ
determination [of indigency] must be made pursuant to Arricle 26.04, sup
before the trial itself even though an accused is free on bail.
Stearnes
v
Clinton
780 S.W.2d 216 (Tex.Cr.App. 1989)(en banc). Once counsel has been validly
appointed
to represent an indige
defendant and the parries enter into an attorney-cliem relationship it
is
no less inviolate than if counsel
is
retained.
[T]he power of the trial coun to
appoim
counsel to represent indigent defendants does not carry with it the concomitant power
remove counsel at his discretionary whim.
Buntion
v
Harmon
827 S.W.2d 945 (Tex.Cr.App. 1992)(en banc). Although an indigem defendant does not have the right to couns
of his own choosing, once counsel is appoimed , the trial judge is obliged to respect th e attorney-client relationship created through t
appointment.
Th
e anorney-client relationship berween appointed counsel and an indigent
defendant is
no less inviolate than if counsel
retained.
November / December 1999
DOCKET CALL·
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Fed Square
By
BRENT
E NEWTON,
ASSISTANT FEDERAL PuBLIC
DEFENDER,
HOUSTON, TEXAS
A Defendant s Danger
to the
Community:
Not
a Basis to
Deny
Bond in
Many
Federal Criminal
Cases
Imagine th e following scenario. You are
called into magistrate court for a detention
hearing. The defendant is charged with
being a felon in possession of a firearm. He
has two prior felony convictions,
one
for
drug dealing and another for car theft. He
also has numerous
prior
unadjudica
ted
;lfl'ests for assault and one dismissed murder
charge. There is al so
evidence
that
the
defendant
is a c
urr
en t
gang
member. The
defendant is
a life-long resident of
the
local
community, and
there
is
no
evidence
that
he is a risk of flight. The police found a
gun
in his car during a
routine
traffic srop. When
the po,lice discovered
that
he was a felon, the
case was referred to the ATF for federal
prosecution.
What do yo u think
the
defendanr's
chances of a bond are? Bas ed on most
attorneys'
exper
iences in federal court
throughout
the various divisions
of
the
Suuthern District
of
Texas, the answer would
appear to be slim-to-none . Many magistrate
judges
and
district judges have detained such
dl:f
end
ants based so lely on their danger ro
the community, a purported basis for
detention in such cases
under
the bail statute,
18 U.s.c. § 3142.
However, despite the
wid
espread practice
of detaining
any and
all def
end
an
ts
where
there is strong evidence of their
dangerousnes
s to the
community,
the Fifth
Circuit
has held that bond is a
uromatic
in
many
CJses, norwiths
tanding
a defendant's
obvious dangerousness. See United States v.
B. ,rd,
969
F
2d 106
(5th
Ci r 1992) .
Fot
unknown
reasons,
yrd
is
regularly
overlooked by practitioner s and judges alike.
In
Byrd
the district court de ta
ined
a
defendant with no
prior
Record, who was
charged
with
child
pornography,
based
on
evidence of his
danger
ro the commu nity.
The
Fifth Circuit reversed
the
district court
on the
ground that the detention
statute, 18
U.s.c. §
3 1
42, permits detention
based on
a detendant s
danger
to the community in
cases
involving
:
(I)
a
charge involving
a
crime
of
violence ; (2) a charge for which
the
maximum
punishment
is
a life sentence
• DO KET CALL
or
a
death
sentence; (3) a drug charge
where
the maxi
mum
sentence is at least ten years;
or (4)
any
felony case where a
defendant's
prio r
record
in c lu d es
two or
more
co nvic tio ns (state or federal)
for th
e
foregoing types
of
offenses. Byrd
969
F.2d
at
109-10.
A court
may
also properly con
si
der a
defendant 's d ang erous ness if the
Government presents
convincing
evidence
that
the
defendant
is
a risk of flight , will
ob struct just ice,
or
tamper
with
a witness or
juror if released on bond . Id .
The Fifth Circuit was clear that
a
defendan
t's dangerousness is relevan t to
detention
only
in
the
se
certain
class es of
cases:
Th
ere can
be
no doubt that
[18
U.s.c.
§
3142)
clearly favors
nondetention.
. . . [DJetention
can
be ordered only in
certain designated
a
nd
l imited
circumstances,
irrespective of
whether the
defendant's
release may
jeopardize public
safety. Byrd 969 F.2d
at 109-110.
Therefore, in federal criminal cases not
involving serious drug charges or crimes of
violence
--e.g.,
most federal firearms charges,
alien s
muggling
cases, theft or fraud cases
a defendant is auromatical ly entitled to bond
if he
do
es not
have
at
least
two prior
convictions for serious
drug or
violent
offenses.
(Postscript: For a good pri mer on federal
bail law, see Hon. Bruce D. Pringle, Bail
and
Detention
in Federal Criminal Cases, 22
Colorado
Lawyer 913
(May
1993) (avai lable
on WESTLAW).)
An
Important Reminder
to
Defense Counsel
Handling
Felon-
in Possession Cases: Always
Check
to
See if Your Client s Civil
Rights Have Been Restored
During the l
as
t sixth
months,
the Houston
office
of
the Federal Publ
ic
Defender has had
rwo indic
tments charging
violations
of
18
U.s.c. § 922(g)( 1) dismissed on the ground
that the
rwo defenda
nt
s' civil rights had been
restored in their respective states of
conv ic tion
(Ohio
and Michigan) and, thus,
that the defendants
were not felons under
federal law. The law is well-established that
a defendant is not a felon for purposes of
the
federal firearms statutes if: (I)
sometime
prior to hi s alleged Iy unlawful possession of
a firearm, he had all or essentially all
of
his
civil rights restored by the sta te of conviction;
and
(2) he was no t
prohibited
under that
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November
/ December 1999
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Fed Square (continued)
state 's laws from
po
ssessi ng firearms at
the
time
of
the
resror
at
ion of his civil righ ts. See
United States v
Dup
aquier 74 F.3d
615,
61 7
19 (5th Cir. 1996) (interprering
IS
U.s.c.
921 (a)(20)) . "Civil rights generally
include
the righr to vore, the right ro sit
on
a jury,
and
th e
right
co
hold
public
office.
Dupaquier
74
F 3d at
619.
Unfortunately for
most
defendants in
Texas charged
under
IS U.s.c.
§ 922(g)(
1),
thei r prior felony conviction(s)
occurred
in
Texas,
which
rarely
if
ever restores a felon's
civil rights.
However
, in
many
if not
most
other
states
(including Louisiana), s ta te
statutes
auromatically
resrore felons' civil
rights after
certain periods
of
time
have
passed since
the defendants com
plered their
sent
cnces (typically
fi
ve years).
Many such
sta tes also do not limir ex-felons' rights ro
possess firearms. (A
common
exception
in
many
srares
thar
resro re ex-felons' righrs
ro
possess firearms are persons convicted of
violent or drug felonies,
who
have a
more
difficulr
time
getting their rights ro possess
firearms resrored .) Notably,
although
rhere
is a tren d in some of these
stat
cs ro limit ex
felons' rights to possess
at
least certain types
offire
arms (e.g., handguns),
the
law in effect
ar
the time
of rhe re
storation of
th e civil
rights
is
whar matters under IS
U.s.c.
921 (a) (20) . See e.g. United States v. Coffins
61
F.3d
1379,
13S2 (9 th Cir.
1995). Thus,
if ar rhe time rhat a
defendanr
got his civil
righrs restored he could possess firearms
under state law,
subsequent
changes in his
stare- law eligibility for firea rm possession are
irrelevant
under
federal law.
If
you
have a felon-in-possess ion case,
pa rricularly one in volving an out-of-state
prior
felony conviction, be sure to
check
ro
see if
your
client's civil rights (
including
his
right
ro
possess firearms) were restored
under
state law
at
so
me
point
prior
to his alleged
unlawful
po ssess ion of rhe firearm.
Such
research
may
require extensive inquiries
into
arcane
state statutes, rules of court,
administrative
regul
ar ion
s,
and caselaw
decided
by srate
appellate courts.
A
good
starting point is an unpubli
s
hed
trearise by
the Justice Department's
Office
of Pardon
Arwrncy enrirled Civil Di
sabi
liries
Convicred
Felons: A Srare-By-Srarc Surve
Such
research may also require relepho
ca lls ro rhe srare
's
board of pardons and paro
(or
a
similarly-named
srare agency.)
If
y
discover rhar your c1ienr was given
certificate
or
official l
ette
r
re
sror
ing
his ci
righrs
when he was di scharged from
sentence, such a document will suffice as
matter
of law, so
long
as it
did nor
expres
limir
his righrs regarding firearm
s. See e.
United
States
v
Erwin
902
F 2d
5 10,
51
13 (7rh Cir. 1990).
Finally,
if you
hav
e a armed care
criminal " case carrying a minimu
mand
acory fifteen-year senrence,
see
U.s.c. §
924(e),
be
sure
ro
check
wheth
your
c1ienrs'
civil rights were tes cor
regarding any of rhe three predicate felo
convictions.
If
you
can
"
bust
" even
one
the
rhree predicate felonies under IS U.s
§
921 (a)(2
0)
, th e
draconian senren
enhancement
will not apply.
See e.g. Uni
States
v
Dahler
143
F.3d 10S4, lOSS
(7
Cir.
1995
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November / December
1999
DOCKE
T C LL·
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Meet
the
Judges
Judge Peters
t
Retire in 7 Years)
Naturally, the Judge's person al experiences
Y GRANT ScHE.lNlR AND
YOLANDA
COROY
How many of
us actually know
what
we'
ll
be
o i n g ~ n
seven years?
Judge Michael Allen Peters is positive
about
what
he won't be doing.
He
won't be the
Judge of
Harris
County Criminal
Court at
Law
Number
2.
'Tve enjoyed these last nine years [on the
bench], says
Judge
Peters. And
if
am
el
ected
for one more
term, it will be
my
last term.
When the day
finally arrives for
Judge
Peters
to
step down , it will be mark
the
end
of
an
era for those
who
practice
in the
County's
Criminal Courts.
The
outspoken,
sometimes maverick,
Judge
has ruled
with
an
iron gavel since 1991,
when
he became
the
County's only Republican to un
se
at
a
Democr:nic incumbent.
Since that
time,
Judge
Peters has
implemented
a
burgeoning
number of Court
rules, best exemplified by
the signs
that adorn the
paneled walls
of
his
courtroom.
A
recent
visit
to the County Criminal
Court at Law
Number
2 revealed
no
fewer
than 22
signs,
exclud
ing
the Judge's
nameplate and the lighted Exi
t
sign hanging
above
the
doorway.
Some
notables include,
Be prepared to
start
a
jury
trial any
hour of
the day,
any day of
the
week, any week
of
the
year.
(Question: what
abo
ut
3:
00
a.
m.,
Saturday,
New
Years Eve?)
Another
standout:
Any defendant who is
requesting
a
postponement to
pay fine
and/or
court OS tS
on
the
date of
a plea,
priot
to plea,
defendant
shall bring in
proof that he/she
has given
blood
prior
to
date
of plea and this
Court
will
grant your
request.
The
deep red sign
matches
one of the
walls in
Judge
Peters'
chambers. Visitors
to the
back
room
will also
notice a framed picture
of
Sylvester Stallone's
Judge
Dredd
. ( A joke, smiles Peters.)
Regardless
of whether Y2K
spells
the end
of us, the finality
of
this year will spell
the
end
of
Peters
'
signs. The County
is
prohibiting such signage in the new
Criminal
Coum
Building. Even Peters sees the
wisdom
in cutting
through the c1u
tter,
as
he concedes
that some of the
verbiage has
"become
a bit
of
an eyesore.
Superseding the signage,
Judge
Peters has
issued a rwo- page set
of court
rules
that
will
go into effect on
January
1,
2000.
The rules
feature softer language
and
more flexibility
than the outdated
signs. For example, a red
and
white sign currently bellows, "No off
hours on weekend [jail] service. No
exceptions."
The
written
rule
will
soon
remind
practitioners that ,
"G
enerall
y,
there
are no
off-hours or weekend
service
of time
except for ex
tr ordin ry circum
stances.
[Emphasis
added.] An
orange and
black sign
presently
warns
that,
"In
all cases involving
domesti
c violence this co urt now requires the
attendance of the
victim on plea
date
wherein
no divorce is
pending and the defendant and
victim are living together. The new
wrirten
rule
says,
In
a case
involving
domestic
violence wherein the parties a re living
together trying
to
resolve
the
iss ue and
continue
in
the
relationship, possibLe the
judge
likes to have the victim in
attendance
if
it does not
ca use
a
hardship
,
inconvenience.
[Emphasis
added.]
"Re
alizing
there
are
no
hard and fast rules,
I try to be flexible , whenever possible, says
Judge
Peters,
who
chuckles
at
the suggestion
of
becoming
a
more
use friendly jurist.
To
prac tice in County
Criminal
Court
at
Law
Number 2, (while steering clear of
potential
pitfalls)
one should understand
Peters'
background and how
he beca
me
a
judge.
Born
in
Dayton
,
Ohio,
and
la
ter
graduating from
St
Francis
DeSales
High
School
in
Oklahoma City
in
1963, Judge
Peters eventually earned a Bachelor
of
ArtS
degree in
Philosophy and Theology
from St.
Thomas
University in
Houston
in 1967. He
later entered the
seminary and
nearly
became
a prIest.
Judge Peters joined the United States
Army
a
nd
served in
Vietnam. He
was
honorably
discharged in
1971.
Later, he graduated
with
a degree
from
the University of Houston
Law
Center in
1974. After seventeen years of
private practice
in
criminal,
family
and
personal
injury
law,
Judge
Peters
ascended
to
the bench
in
1991. When
asked
why
he
sought the bench
, Peters will
simply
tell you,
"the
challenge.
"I wanted to see
if I could operate
effectively
and
efficiently as a Judge. 1 like
making a difference in a person 's
life;
particu larly, a
young
person
on
the threshold
of adulthood.
I
think
th e
courthouse
can be
as much
a
part of the
healing
process for
someone
as a structured
counseling
environment
, he says.
also
shape
his approach
to sentencing. "My
philosophy
(on punishment)
is
tempered by
my
years in candidacy for the
priesthood, my
time in
the
Army, and etc.
He
seems to value
those
who
"take responsibility"
whenever
possible. In a
Motion to
Revoke
Probation,
for instance, in
which
the
accused
appears
to
have a
drug problem,
defense counsel might
be served by
suggesting the client
seek
counseling
even before
the
hearing. "That
would
give me
something
to
work
with,
Peters
nods
approvingly.
The Judge points out
that
he
understands
the
challenges of defending a citizen accused.
"W hile
in
private practice,
I
enjoyed the
camaraderie
with
my former
classmates
and
other
lawyers. I also enjoyed the challenge
of
representing people
whether
in trial, pre-trial,
or
arguing
before the Court
of
Appeals, Fifth
Circuit, or the Untied
States
Supreme Court.
That
probably
was
the highlight of
my career
as
a defense lawyer, he says.
There
was
that
sense of satisfaction that
justice had been
done, if only
for
that one individu
a
l.
And
no, there's
no
s
ign for that.
For those interested in c
ourt
appointments,
County
Criminal
Court
at
Law N o 2
contracts
these
out on
a weekly basis only.
Attorneys are not
compensated
for
the
number
of
pleas in
which they
engage. You
are not
under
the bullet to work every case
out,"
says Peters. It doesn't
matter
how
much
time
you need to
do the job
properly.
To
do
the job
properly, Peters insists
court
appointments should remain
in
the
hands
of
the
lo
ca
l
judges
. Just because
you
'
re on the
list,
doesn
't mean you're a
competent
lawyer
who
can try a case. I like to be able
to
select
the
lawyers myself,
he
says. For those
of
you
intete
s ted in
demonstr
a ting your
competence
and
desire to
do appointments,
the
Judge
suggests you get away from
your
practice
and
see
what
a trial looks like in
my
court,
how
[ conduct
voir
dire, rule on
motions,
etc,
For cases
not
heading
for trial ,
the Judge
recommends lawyers
not
plea bargain in the
courtroom."
He
suggests,
"Go
to
the
D .A.'s
office ahead
of time and
try to
work the
case
or
the issues
out.
With retirement
a
mere
seven years away,
Judge
Peters looks forward to
spending more
time with
his friends,
shooting the
breeze on
his familiar H arley. I
enjoy spending time
with
similar
minded
people, he says.
1
•
DO KET
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November / December 1999
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The Investigator's Corner
Y R.J. VARGAS
[n a day
and
age where atrorneys
and
private investigators are limited in scope and
oftentimes hindered in their
efforts
to
prepare an adequate defense for their clients,
it
is
important
for
you
the
attorneys,
who
are at the forefront of preparing the defense
to become aware that from the investigator s
perspective timing is everything.
A prime example is in the preservation of
items that might actuaJly help the defense
such
as police
dispatch
tapes
and
MDT
prinrouts.
There
have been countless times
that I get appointed on a case several months
down the road from when the
atrorney
actually acquired the
it. To
examine
all
possible angles of the arrest
and
how the
police say the arrest occurred, [ would want
to have
dispatch
and MDT print outs.
Because
HPD,
for example, has a policy
of
only keeping dispatch tapes for
one month
before they reuse the tapes, this issue would
be moot because by the time [ get appointed
on
the case more than a
month
has gone by.
The Harris County sheriff s
department
has
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Deli Sandwiches
Soup Chili
Daily Until Closing
LUNCH
SPECIAL
Mon-Fri
11:00 A.M. -
2:00
P.M.
Open 65 Days A Year
Till
2:00
A.M.
November / December 1999
a similar policy for the preservation
of
their
dispatch tapes.
The same is true is for when 911 is called
by a complainant or a reportee in a case.
These 911
tapes,
which of course are
recorded, are only kept for one
month
by
the
city
and county
law
enforcement
ent.ities
so again, time is of the essence.
There
have
been
times
when 911 tapes have
been
properly subpoenaed and thus preserved, but
a little
known
fact
is
that nOt
only
does the
police, fire or sheriff s department have a
copy
of
the 911 tape we re after,
but the
911
emergency network located at 601 Sawyer
street, with
whom
the public first makes
contact
with
when
calling
911,
has
a
recording of the initial contact that
the
person makes
with 911
before the
911
operator
connects him/her with
the
appropriate
emergency agency. In
my
opinion, it s imperative that that tape is also
requested and reviewed so
that
comparisons
can be made berween
what
was initially said
to the 911
operator and what
was said to
the
law
enforcement agency or fire
department.
s of this writing, subpoenas for dispat
or 911 information should be made out
the following persons:
Houston
Police
Department
Barbara
Hardeman,
Cusrodian of Recor
1200
Travis St.
Houston, Texas 77002
Harris County Sheriff s Department
Tracy Mullins, Custodian of Records.
Communications
Division
1301 Franklin
Houston,
Texas
77002
(713)
755-7428
911 Emergency Network
Kathy Armstrong, Custodian of Recor
601 Sawyer St.,
Suite
300
Houston,
Texas 77008
(713)
407-2144
am
-12
pm. tues. thurs
am 2
am.
fri
Gpm
2am.
sat
closed.
sun.
&
mono
DOCKET C LL·
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Top Ten Things You Should Know
In Your First Capital Case
Y P T MCC NN
I
should
stare this article by saying
that
it
is NOT intended co
be a
guide co preparing
for a capital trial,
nor
it
is
a review
of
case
law.
It
is not intended
for
the
experienced
capital practitioner, since I do
not
consider
myself on e
.
[There are people
in
Harris
Count)' who have more capital cases, at some
level ,
under their
belt than the
number of
years I have been alive.]
Ie is
instead
intended
for the new death-penalty practitioner,
at
whatever
level
they
choose
to
enter
this
difficult process,
whether
it is trial, appeal,
or
postconvicrion.
At
some
time
or another,
I hJve
m3de
ewry
mistake that
I list here, so
if you like,
think
of it as a list
of
helpful
hints
from
one
rookie
co
another. Here
goes.
# 10 Accept the risk of death
I never
accept the
inevitability
of
a
death
sentience, bur
if you cannot
accept the very
real possibility that it
could
happen
despite
your
be,t
efforts,
then
I
would
respectfully
suggest
you should
not do
this work.
That
is not
a criticism: after all,
how many people
actually
w nt
to do bomb dispos31?
SomeboJy
has
t do
it,
but not everybody
does.
To
help you,
the new
practitioner,
accept
the re3liry of this possibility as a
concept,
let
me
point
om some
E,cts. First,
if
you practice
in '
kxas,
particularly
if you
practice in
Harris
County,
you are in the
death penalty
capital
pun intcnded]
of the
world
. Harris County
is second
only co
1e
State
of Texas in the
Ilumber
of
people
it has
sent
to the
cxecutioncc's
chamber. The
atcorneys
who
work for the State here are extremely skilled
at trial,
and postconviction
in gerring
the
dL
:
ath
penalty
and
in seeing it carried
out.
Unless
you
ar xtremely fortunate, they will
have [hl' edge ove r
you
in experience, facts
and
resources.
Do not
kid yourself; whatever
your
own
personal opinion
of
individual
prosecutors
may
be,
as
a
group they
are
the
Illost
competent
state capitallitigacors in
the
free world . Period.
Add
t
this some
other
simple concepts,
sucb as
the bct rku any juror
who has
grown
up or
lived a reasonable
amount of time
in
this area has read
or
heard
about
dozens of
Glpital cases
and
executions,
and
chat, in all
likelihood, the bcts
in
your
case are horrib le,
and your
chances uf success
become that
much slimmer.
A desen sitized
jury
is
not
helpful, and in
many
cases your
own
client
will be
your most
difficult
opponent
in
the
case. Your
client
may
insist on testifying
despite his
or her twenty
felony
convictions.
Your
client
may insist
on
making statements
to
the
press without your knowledge, or
make death
threats
co
the
judge or
jury, or
try
co
put a Contract Out
on
witnesses
during
trial,
or publish
a website with ierters
from
his victims. All
of
these things
happened
in
recent Harris County
cases,
and
if you think
these
incidents did
not
help
the
defendant,
well,
you would
be right.
To quote Captain Gerald
Coffee,
USN
(Ret.), a
Navy
flier
who spent
a
number
of
years
as
a "guest"
of the
communists
during
the
Vietnam
conflict, "The best
you
can do
is
the best
you
can
do.
I f you have
done
everything you
ethically
and truly thought
could
be
done, then
you have
co
accepr
that
you
did
your
best for
your
client.
That is
all
you or
anyone
can ever do. If
despite
that,
you
have the unpleasant task of hearing a
sentence
of
death
pronounced
at
trial,
or an
appeal or
stay
denied, you mu
st be
able
to
go
on,
because rhere will be
another client
comorrow, or next week.
#
9 .
It s not
about you
The stakes in this
arena
are different,
and
your response
must
be as well. This
is not
the time co
let
your confidence
get
your
client
killed. Your client's life
is
lirerally in
your hands, and you
necd to take every
step
possible
to
save his life because you are
not
the one who
has
to suffer the consequences
of your failure. If you are at trial
and there
is
any possibility tha tyou can Iegotiate a sentence
other th n del1th, explore
it
, nd o your
damnedest to convince the client to take it.
do
not usually try to "strong-arm" clients
into
a plea unless I believe
they
are truly going O
hurt
themselves
if
they don't. In capital cases
that
rule goes out
the window
because
you
cannot afford co lose. Likewise, you cannot
afford
co
let
anything get
in
the
way
of your
focus
on
your
client's life.
If you hate
your
cocounsel, suck
ir up.
If
you don't
want
to
talk to
the prosecutOr because of an old
conflict, get r it. If
y
ou
dislike
the judge,
drill with
it
.
If
your co
counsel is
not
pulling
her weigh t tell her, fire her,
or
go
around
her,
but
never, ever
throw
up
your hands
and
say Oh well." Your problems are irrelevant,
because it ain't
about
you
No
matter at what
stage
you
are, this rule
applies.
lr
doesn't
matter
if
you
don't
want
co
do
something, and it doesn't marrer if you
think
it will
make people mad.
If
your client
needs i r you try
and
get it. If
you
are at appeal
and there
is
any remedy
ro seek, seek it.
If
you are
at
postconviction
and
want
any
relief,
ask for it. If you are at the clemency stage,
make your
best
pitch, because you never
know when someone might actually
listen.
A wise
old
lawyer
who had handled
a lot
of
these cases in Texas
and
throughout the
South
once said at a seminar , "You don't
want
co be
heading co the prison co
see
your client
at night. Night
is
when
they kill
your
client,
whether
at the Walls Unit in Huntsville,
or
at Atmore in
Alabama,
or Dannemore in
New York. If you can avoid going co see your
client at night,
do
it.
#
8 This will be more
work
than you e ver thought possible.
This
is
no
joke. If
you
are
at
trial,
you
will
spend
months
in
preparation, meetings with
your cliem
and
his family [I say "his" because
the
vast
majority
of capital clients are
men,
but it all
applies
to women
as
well],
interviewing witnesses
and
viewing evidence.
You
will
talk with experts, meet with
investigators,
and when jury
selection finally
starts you will spend, in Texas, typically th ree
to five weeks
picking
a panel
that
can
be
qualified
co
sit
on
a
capital
case. Then
you
will
spend
a week in trial,
and
,
if
they convict,
another
week in
punishment. If you think
keeping
a
practice cogether is
easy
under
those conditions, think again. If you
are
fortunate
you
will have a
good
cocounsel
who
will
share
the
burden
equally. I f
not,
then
see
Point #
9.
If
you are
doing
a
direct appeal,
you will
at some point contemplate ritually
disemboweling yourself
as you read, for the
fortieth
time,
a
potential
juror's response to
one of
rhe lawyer's
questions.
[FYI,
defense
atcorneys' questions are no more interesting
ro
read
than
prosecutors' questions,
the
author included.]
You will be expected to be
able to argue a
competent Motion
for
New
Trial even
though
you
were appointed
last
week and the deadline
for filing the
MNT
is
next
week
[and rhe trial counsel are of f on
a
drinking
binge
due
to their
depression at
the result
and
can't help
you
prepare'] You
will be expected
to know
and
reference a
staggering amount of
Eighth
Amendment
2
•
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/
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1999
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op
en Things You Should Know
In Your First Capital Case (continued)
attorneys here. You could not find such a
group anywhere else, and they are, by and
large,
hugely
willing ro help. If you are
outside Harris
Coumy they acrually will
respond ro a phone call. Likewise, if you are
practicing
far
away
from
here,
there
are
dozens
of
skilled capital lawyers in
Austin,
DaJhs, San Anronio, Fe. Wonh,
EI
Paso, etc.
This is not the
time ro be shy, and if you
don t know anyone then call the HCCLA,
the HBA-Crim Law section, the TCDLA,
and
every Lawyer you know.
#
3 Do
not forget t
spend as
much
time and effort
on
the
punishment phase.
If there is an area where we could all do
herrer, it is in developing, preseming and
preserving a solid case for sparing
our
c1iems'
lives. Often, as second chair, this
dury
may
fall to you.
Ie is
absolurely vital
that
you
esrablish a good working relationship with
YOllr investigaror or mitigation specialist
early. You may well be responsible for
presenring this area ro
the
jury, so you must
have a good sense of your issues, the wirnesses
and how ro present them in the most
compelling
fashion. A working knowledge
of memal health issues and how to
question
experrs in this area is crucial.
These areas are
just
as critical on
postconviction
and at appeal.
The way
the
sracute
is worded
in Texas
means th at you are facing an uphill barrie.
Essemially your c1iem's fate will be, or was ,
decided based upon cwo questions: 1) Is he
a future danger? [Duh He was just convicted
of capital murder, so
do
you
think
you start
out
behind
on this question?] 2) Is
there
enough mitigation
ro
justify giving him a
senrence
of life imprisonmem? See,
the
questions mandates
that
YOU give
THEM
a reason ro spare your guy, either by
proving
he
is
nor dangerous, or by offering
up
enough
reasons for
mercy WITHOUT
revealing
more
potemial
furure
danger
evidence for
them ro spare
your
fellow. So a case
that
does
not
have a clear theory for
sparing
your
client's life
is
a case half-prepared .
Why
show
up if you only brought half your game?
# 2
Do not expect anyone to
thank you.
If YOll wanred love
and
universal respect
for the
job
you do, you
should
have been a
fireman.
You defend what society considers its
pariahs,
the
lowest of
the
low. Never mind
that
phrase
about how we treat
the
most
wretched
among us
is
the erue
measure
of
our wonh as a society; ro most folks
that is
a
bunch
of
abstract
crap.
You
will be
questioned
and reviled by nearly everyone
who discovers that YO ll are defending
THAT guy?". Never mind that pare of the
Consti tu t ion [a fine but underused
documemJ that
says every person is enrirled
ro a fair erial;
nobody
really
wams
you ro
win in this arena.
No
marrer what effores
you put in , you are
not
likely ro get any
appreciation from
your
diem,
your
diem s
family [who will blame
you
for the fact
that
their
poor,
innocenr
son
was caught
on
videotape shooring
the clerk after
the derk
gave
him
all the
money],
cenainly not
the
deceased's family, nor anyone else involved
in
the
case or the media. Ironically, the only
folks
who may
acrually
notice
the effore you
put
in, and appreciate it
on
a professional
level , are
the
prosecutors and other coun
processionals
who
watched you throughout
the
case, whether
at
erial, appeal or during
the habeas ponion. Expecting
thanks
from
other
people in this line of work is like
expecting love at a whorehouse ; it
occasionally may happen,
but
you should not
expect it.
# Never
ever quit.
YOll
have been given a task that people
such as Thurgood Marshall, Clarence
Darrow and Abraham
Li
ncoln have all faced;
defending
a man's life before a hostile crowd.
You are in good
company,
and if
there was
ever a person that needed you, it is the guy
sirring next ro you at the counsel table. If
there was ever a
time
that you needed to
summon every
ounce of
clever lawyering,
creativity, perseverance
and
courage YOll
have, it
is
when
you are on these cases. There
is
no
more demanding thing
that will ever
be asked
of
you as a lawyer,
and,
like
most
truly challenging siruations, you will learn
some
things about yourself that you perhaps
did not
know
and did not wam to know.
If you
do
not do every thing possible, if
you
do
not
leave
everything
you have in
that
courtroom, then you will have hard time
facing yourself in the mirror. You will never
ever
know
what may move
one juror
ro spare
your cliem's life,
or
what issue may gain him
relief from a reviewing coure. So you must
do
everything you can, for your client, for
the coun, and ultimately, for
your
se lf.
In
a
time
when
most people scoff at
the word,
that is a path ro honor.
Good luck.
JAY T
KARAHAN
Mediator
DAMERIS KUNIAI KY
Post Oak
Tower
5 51 Westheimer, Suite 700
Houston, Texas
77056
OFF:
(713) 627-3606
FAX:
(713) 627-3644
24hr toll free pager (800)
817-6062
4·
DOCKET CALL
November /
December 1999
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Hearsay
Not uilty Verdicts
Adam Moskowitz - Mi sd e
me
a nor
Assault on a murder charge.
David
Wyborny
(We mi
ss
ed th
es
e in
Au gust) - Assault in CC Cl l , OWl (No
Test) in CC
CL
# 12, and Terroris
ti
c Th reat
in CC CL#2
Jack Fuerst -
Ind
ecent Exposure and
Tr
es
pass ing in CC CL#2
Dave Pendleton -
185
th
District
Court
Felony DWI in the
Ri ck
Ca
stleberry A
ssa
ult in CC CL#8
Dann
y Easterling -
DWl
(
No
T
es
t) in
CC CL 6
Gilbert Villareal
- Pr os
tituti
o n In
CC
CL#5
Jim Lavine - Aggrava ted A
ssa
ult
in
262,,1
District
Co
urt
Phil Baker - Assa ult in the C
CCL 2
Tyronne Moncriffe -
Fel
on
in
Possession
of
a Weapon and Posse
ss
ion
of
a Controlled
Substance in 2
32
0J
District
Co urt
Vivian
King and Robert
A. Jones
(Vivian s first federal tria l) Conspir acy to
Po ssess
with
Intent to De
li
ver (5 kilo
s)
,
directed verdict of not guil ty
Mi
c
hael Mau
s -
Fa ls
e
Rep
o
rt
In
CCC l 1 2
Richard
Moore
- Assa ult
in
CC C L# 13
Mark Bennett - Di rected verdi ct in
CC CL#9 (DWI ) - H .
P.D
. Officer Lindsey's
weak tra
ffi
c stop .
Jo
hn
Ar ms trong - C lass A T heft In
CCCL#9
Don Becker - Th
ef
t in CCCL# 15
Jack Carroll -
Theft
in CC C l 7 and
OWl in CC CL# 10
Don Becker - Th e
ft
in CCC L#5
Ric
hard
Mo
ore
and
Bennie House
Po
ssession of Marijuana in
339th
District
C
ourt
Marc
C
arter
- the one ac
quittal, of
a
Ukraini an sea man, in a
drug-smuggling
co ns piracy in volving 4
ton
s
of co
ca ine
aboard a Panaman ian freighter.
Others
Mike DeG e
urin-Life
s
en t
e nce o n
F
el
ony
Murd
er where death penalty s
ought
in 183
t
District Court
Jerry
Guerinot
and
Anthony
Osso - Life
s
en t
ence on Capit al
Murd
er where death
penal ty sought in 208th District Court
Lawrence
Newman
- On app
ea
l, g
Motion to Revoke Probation reversed a
re nd ered in th e 14
th
C ourt of Appea
(2 co
mp
anion cas es
out
of the 33Th.)
James Sullivan -
Moti
o n
to
Sup pr
g ra
nt
ed in Possessi o n o f C
ontroll
Sub
stan
ce
case in th e 3 15
th
District
Co
u
Jonathan
J. Paul l - Motion to S
upp
r
granted in Posse
ss
ion of Marijuana case
the 1
74
th
District C
ourt
.
David Bires
-
Moti
o n
to
S
upp
r
granted o n Posses sio n of a
Co
ntroll
Substance case in the 184
t
Di strict
Co
u
Randy Schaffer - Motion to Suppr
gran ted in a Po sse
ss
ion
of
a Co
ntr
o
l
Substance case in the 208
t
Distri ct Cou
Cly
de
Williams -
Motion
to Suppr
grant ed in a Po sse
ss
ion of a C
ontr
o
l
Substance Case in the in th e 3 15th juve n
court.
Adam
Moskowitz and Chris
Downey
hung jur y in an aggrava ted Assa ult in
338
th
.
There will
be
no
Disclaimer
Editor's Note
December
1999
After
Hours
CLE
he
opinions expressed in
Docke
t C all
Docket Callnceds
more
input
from you
articles are those of the individual authors
Without
new ideas
and ener
gy from more:
Program.
and
do
nor necessarily represent the views
people. it will get stale
and hard
to keep
of
the HeCLA Board. CAVEAT: Plea
se
going. We need help with recruiti ng new
be reminded that the magazine comes inca
advertiser
s.
with articles an
dlor
ideas for
ex istence through the work
of
a completely
The January 14,
rti
cl
es, a
nd
we need to k
now
what
YO li
w
ant
voluntccr staff. and we ar unable to heck
from lIS. Write u . Call u . lellus
what
YOll
2
the accuraL'}'ofciratiom
ur
legal pClsirions.
think
It is every lawyer's responsibili ty ro heck
After Hours CLE
the accurac
y
of
t
he arguments
and
cirations h e ~ h e makes ro the coun.
topic is to
be
announced
Nov ember December 1999
O
CKET CA
LL·
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,Sheep in Wolves' Clothes
A monthly column dedicated to exposing
commonly overcharged offenses
Y
NORM
SILVERMAN
This Month: Engaging
n
Organized Criminal Activity
This month's sheep are
Engaging
in
Otganized Criminal Activity cases where
the obje
ct
of the
combination is
a single act.
T hese cases have for
quite
some time been
the darlings of tha t elite division
of
our
District Attorney's Office: [que mu sic from
Dragnet ] The Special Crimes Division.
It 's
interesting
to note
the
manner
in
which fine young lawyers rise through the
ranks
of
the DA's office.
They
start
out
in
misdemeanor
court doing
their pa
rt
to keep
our st ree ts free
of
drunken drivers and
possess
or
s of the devil's weed.
Then, as
their
skills increase, tney move up the ladder to
felony
court
where the cases are presumably
more
complex
and the allegarions
more
serious. Fi nally, after having
prosecuted
virtually all species of ctime men can
co
mmit,
they take that next step and
enter
that hallowed ground on rhe ninth floor of
the
DA's
Office
called Special
Crimes
where their
motu
has to be, We don't just
prosecute crime, we create it.
Against that
backdrop
I give you this
month's Sheep in Wolves Clothes .
t T he Statutes and Relevant
Definit,ons
Engaging in Organized Ctiminal Activity
really
is
against the law. TEX PENAL COD E
A
NN
.
§
7 1.
02
(Vernon 1997) condemns the
practice. It provides in pertinent part.
(a)
A person commits an offense if,
with
th
e
iment
to
establish,
maintain,
or
participate in a
combination or
in the profits
of a combination
or
as a member
of
a
criminal streer gang, he commits
or
conspires
to
commit one
or more
of
the following:
(I) murder, capital. murder, aggravated
robbery, burglary th e fr ,
aggravated
kidnapping, kidnapping, aggravated assaulr,
aggravated sexual assault, sexual as sa ulr,
forge
ry,
deadly conduct, assault punishable
as
a
C lass A
misdemeanor, burglary of a
motor vehicle, or
unauthorized
use
of
a
moror vehicle;
(2)
any
gambling offense punishable
as
a
class A misdemeanor;
(3)
promotion
of
prostitution, aggravated
promotion
of
prostitution, or compelling
prostitution,
(4) unlawfuJ manufacture, transportation,
repair, or sale
of
firearms
or prohibited
weapons;
5) unlawful manufacture, delivery,
dispensation, or distribution
of
a controlled
sub
s
tance or
dangerous drug,
or
unlawful
possession of a controlled substan ce or
dangerous
drug
through
forgery,
fraud,
misrepresentation,
or
deception;
6)
any
unlawful wholesale
promotion or
po
sse ss
ion
of
any ob
s
cene material
or
obscene device with the
intent
to wholesale
promote
the same;
(7) any unlawful employment, authorization,
or inducing
of
a child younger than 17 years
of age in an obscene sexual performance;
8) any felony offense under Chapter 32 ,
Penal Code;
(9) any offense under Chapter 36, Penal
Code;
(10) any offense under Chapter 34, Penal
Cod e;
or
(11) any offense under 37 .11 (a), Penal Code.
The gravamen of the crime is the intent
to participate in a combination . TE
X
PE
NA
L
COD E ANN
§
71.01 (a) defin es
combination.
It
provides
in
pertinent pan :
(a)
Combination
means three
or more
persons who co
llaborate
in carrying on
criminal activities, although:
(1) participants may
not
know each others
identity;
(2)
membership
in the
combination may
change from time to time; and
(3) participants may stand in a wholesalet-
retailer or
oth
er arms length relations
hip
in
illicit dis
tribution
operations.
II. SuHiciency of the Indictment
To state
an offense
under
TI'
.x
. PE
NA l.
C OOl:: ANN. § 7 1.02 the indictment
must
charge the existence
of
a
combination,
set
our
the
membership
of
the combination,
charge the objects of the combination
and
the overt
act
y
our
client is alleged ro have
done
in furtherance
of
the combinarion. The
indictment
must charge the combination
with the commission of more than one
criminal activity,
but
not necessarily
more
than
one
criminal offense
or
else it
would
fail to state
an
offense under this section. In
Nguyen
v
State
_ S.W.2d_ 1999 WL
734873
September
22,
1999,
the En Banc
unanimous Crim. Apps held :
[T]he
phrase, collaborate in carry ing on
criminal activities
cannot
be understood to
include
an
agreement to jointly commit a
single crime; the state
must
prove more
than
that the appellant
committed or
conspired
to commit one
of
the enumerated
offenses
with two
or
more people.
The Court
of Appeals said that the
something
more the state
must
prove
is
continuity, in other
words that
Appellant
and
two
or more people
agreed
to work
together in a
continuing cour
se
of
criminal
conduct. We agree. /d Some
indictment
s
alleging
only
an
agreement
ro
commit
a
single crime will be subject ro a motion to
qua
sh if, after
omitting
as surplusage all of
the engaging language, the
indictment
fa.ils
to state
any
offense. Other
indictment
s will
still sufficiently state commission of the
object offense
and
will survive a
motion
to
quash so long as the object offense is itself a
felony. Otherwise
the
court
would
lack
original jurisdiction
and the motion would
be
good
.
I I I Possible
Grounds for
Collateral AHack
of
Priors
The holding in Nguyen was
no
novel
interpretation oflaw. Rather, the Crim. Apps
merely read the plain
meaning
of the s
tatute
and
applied it accordingly.
This
fact
may
bode well for those accused persons
who
the
state seeks to
enhance with
a prior engaging
conviction when the prior indictment alleged
as
the
object
of the
combination
only one
act.
Collateral attack
via an
11.0
7 writ
alleging involuntary plea and/or ineffective
assistance may prove to be an effective means
of
eliminating the enhancemenr.
IV. No Parties Liability
for
Overt
Act Element
Also
not
e
worth
y in engaging cases
is the
requirement that each alleged partic
ipant
16 • DOCKET CALL November / December 1999
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Sheep
n
Wolves Clothes
(continued)
must himselfhave commined an oven act
in furtherance of tne combination.
Ie
is not
poss ible co be a pany
co
the
oven
act of
another member of the alleged combination.
Accord McClaren v. State, 19 99 WL 649242
(Tex.
App.-EI
Paso August 26, 1999) 2. The
Co un held ,
We cannot hold that any ovett act by any
member of the criminal co mbination is
attributable co all its members und er the law
of parties. If this were so, it would effec tively
eliminate the "overt act" element form the
offense,
as
any single act by any indi vidu al
would suffi
ce as
the overt
ac
ts of all. This is
true in a conspiracy case, T EX. PENAL CODE
ANN.
§
15.02
(Ve
rnon 1994),
but not
in an
organized criminal conspiracy prosecut
io
n.
As
the Coun of Criminal Appeals has
explained:
A person may be guilty of criminal
con spiracy by
doing nothing
more than
agreeing
co
participate in the conspiracy, as
long as another conspiracor commits some
overt ac t in furth erance of the conspiracy.
But to commit the offense of engagin g in
organized criminal ac
ti
vity the actor must
not only
agree t
participate but mu
st
himself perform some overt act in pursuance
of that agreement.
McClaren, citing Barber
v
Sta te, 76
S.W2d 232 , 235 (Tex. Crim. App. 1988).
The punishmem for criminal conspiracy,
like the oth er inchoate offenses, is one degree
lower than the object offense a lleged ; TEX.
P
ENAL
COD E ANN. §
15
.0 2, while the.
punishment
for engaging in
organized
criminal activity
is
one degree highe r. T EX.
PENAL ComeANN § 7 1.0
2.
Therefore, it is
not surprising that given the choice the state
will
pur
sue prosec ution under the latter.
Fortunately, the courts have
now
given
us
cwo new cools co shear this "Sheep
in
Wolves'
Clothes" .. may they se rve you well.
Author 's Note: I'll let
you
know if it
work
s.
I ha
ve
several in the works.
2 Republic of Te xas case
wherein
McC laren was charged with engaging in
organized criminal ac ti
vi
ty, the object of
which was a kidnapping .
Next
Month: The Phenagren Fizz
(Codeine in Soda
Water)
... Felo ny
or
Misdemeanor?
Point
&
Counterpoint
From th, Editor:
Wht'n Director
Jack Carroll read in the
HOIIJ tOll
Chronicle
that
Assistant DA
Dc\'on Anderson had won seventy jury
trials without a not guilty verdict, he sent
in a notice to the lasl issue of Docket
Call
that he had
a
not guilry verdict in a trial
with Devon Anderson on a Burglary with
Intent
to
Commit Aggravated Assault case.
Devon Anderson read this entry and
submitted her "Point" that it was really a
conviction on a lesser
included
offense
of
~ p ; l s s where
the
defendant
was
sentenced
to
a year
in
the county jail and a
$4000
tine. Upon reading Ms. Anderson's
"Point" we now have the
Counterpoint
from
Jack Carroll.
We encourage more
Point/Counterpoint
issues
and
hope
to
make it a regular feature
of
Docket Call.
Let us hear from you.
Dear
Mr.
Carroll,
I m
glad that you were
my
lawyer,
but
I
have a question for you:
If
I was
found
not
guilty in that case that you tried against
Dl von Anderson, why did I serve a year in
the county
and
have to pay a $4000 tine?
Awaiting
your
reply,
Vincent Marbley
Submitted by
D ellon
Alldason who
wa11fed to
set the ucord straight--
Ron
Mock
is thtjint trialnt tornry who beat her in felony
court.
Dear Mr. Carroll,
I read the letter I never wrote and must
admit
I m
confused . My tr ia l wa close to
cwo years ago and my sentence for criminal
trespass has long since passed. I
tho
ugh t
the prosecutor's name was Devon Wa rd. I
never question your judgment
and
I thank
God
everyday that my
mother
dlOse you
to be my benefactor and the
champion
of
my cause.
Ms. Ward's offer was forty y e a r ~ for the
charge
of
burglary with intent to
commit
aggravated assault. I had done pen time for
a prior burglary/aggravated assault. I wep
with joy when the jury found me nor guillY
of the burghuy/aggravated
assault, bU
guilty
of the lesser offense, crimina
trespass.
Following your
FINE example, ro
have become
a
studeIH
of
the law.
remember at the trial you gave me pearl
of wisdom that I took to heart. If yo
don't know
the
rules-CHEAT-READ
THE BOOK. I have read Ihe
I : O d l ~
an
case law, (below are the results of m
research.) Everything have read, excep
the forged letter, tells me was found no
guilty of the higher offense. If am wron
please advise.
With
great
admiration,
esteem
an
gratitude, I await your reply, lawyer Carrol
Vince Marbley
ART.
37.14
ACQUITTAL O
HIGHER
OFFENSE AS JEOPARDY
If
a defendant, prosecuted for an ollcns
which includes within it the ser f f e n ~ e s
be convicted of an ofJense lower than tha
tor
which he
is
indicted,
and
a new rrial h
granted him,
or
the
judg
e
ment
be arreste
for
any cause
other
than
the
walll
o
jurisdicti
on,
the verdict
upon
the first tria
shall be considered an acquittal of th
higher offense; but he may, upon a secon
trial , be
wnvicted
of the S,lme offense o
wh ich he was before convicted ,
or
any orhe
in ferio r thereto.
State
v
Rmrepo, 878
S.W.
2d 32
7,
32
(Tex.App-Waco 1994, writ dism'd). Whe
the jury is given the option
of
convictin
on
either a greate r or lesser includl
offense , a guilty verdict on the lesser H c n ~ l
is
an
implied acquittal of the grearc
offense. [Tlhe verdict can be treated a
though
the jury had returned a
wrdic
which expressly read: We
find
th
defendant not guilty of [the greatl'r ollense
but
guilty of[the lesser included offense] .
Submitted
by
Jack Carroll
i l l
·(,SpOIl •t· t
Devon Anderson s submissioll.
DOCKET
C
ALL·
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