1999 NovDec Docket Call

8/11/2019 1999 NovDec Docket Call

http://slidepdf.com/reader/full/1999-novdec-docket-call 1/20

C LL

riminal Lawyers ssociation



.

.

..... -

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



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


DOCKET

CALL


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·



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

e-mail

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


mailto:[email protected]











http://slidepdf.com/reader/full/www.HCClA.org








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 ·



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

November/ December 1999



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 •



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



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.


DOCKET CALL·



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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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

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DOCKE

T C LL·



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

C LL




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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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.


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·



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

•

DOCKET C LL November

/

December

1999



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

[email protected]

24hr toll free pager (800)

817-6062

4·

DOCKET CALL

November /

December 1999





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·



,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



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·

November / Dece mber 1999



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