8/11/2019 1986 March Docket Call
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DOCI(ET CALL
MARCH
1986
JUnGE
C RROLL
WEAVER
927 986
8/11/2019 1986 March Docket Call
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Robert Pelton ~ ~
Candelario Elizondo P m i ~ . t J 1 l t
Jay
Burnett Pm!.t
Mary Moore
S ... tlff
James
Dougherty
r ......
Randy McDonald
Ii .
DO KET CAll Is published monthly by
the
Harris County Crimi.
nal lawyers
Association,
P.
O. Box
22773, Houston, Texas
77027.
Advertising
Rates: Full
page
$200.00;
!
page -
$100.00;
#
page $50.00 per
Issue.
All
articles
and
other
editorial
contributions should be
mailed
to
HeCLA P.O. Box 22773, Houston, Texas 77027.
[ ~ i t .
Allen
C. sbe l l
Prdwti
Donna
K. Kleszcz
NEWSLETTER
DEADLINE Material for publication
should be submitted
by
Friday,
March 28 for
the
April
Docket Call.
Past Presidents 19711984
J. Anthony Friloux
Stuart Kinard
George Luquette
Marvin
O.
Teague
Dick DeGuerin
W. B. "Bennie" House.
Jr.
David R. Bires
Woody Densen
Will Gray
Edward A. Mallen
Carolyn Garcia
Jack B. Zimmermann
Clyde Williams
Board of Directors:
Randy McDonald. hairman
John Ackerman
Ray Bass
Walter Boyd
Catherine Greene Burnett
Felix Cantu
Jan Fox
Carolyn Garcia
Johnny Gill
Will Gray
Ruben
Guerrero
Charlone Harris
Allen Isbell
David Mitcham
Frumencio Reyes
G.
Mac Secrest
Clyde Williams
8/11/2019 1986 March Docket Call
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rrom the President s esk
...
Robert Pelton
Your organiza t ion i s
due
for some changes in
the
following months.
The obvious
change
i s
Docket Cal l . n organiza t ion with the best law-
yers in the United Sta tes needs to have the bes t
publ icat ion .
The appearance and
content of
Docket
Cal l i s a
move
in t ha t di r ec t ion .
Thanks to
Allen
I sbe l l , Edi tor of Docket Cal l ,
the content of our
publ icat ion
i s exce l len t .
Allen
and
I
have
decided to make severa l addi
t ions
to
the
monthly
magazine. Some
of these
changes are as fol lows:
1. Let te r s -
when
you have something
to
say,
then
send it in .
2. Advocates
- column
wri t ten by former
Pres ident Carolyn Garcia tha t w i l l deal
with
i ssues
on
cap i t a l murder
cases .
3.
Tr ia l
Tact ics - wri t ten by Jim Skelton
(world famous lawyer and "Healer of
Broken Hearts ) .
4. Court Tales - a column
each
month
wil l
be
wri t t en by one of the
D i s t r i c t
Court or
County Court judges
in Harr i s
County.
Judge Shel ly Hancock has "volunteered" to
wri te
the f i r s t column and to furn i sh
other
volunteer judges or himsel f to
keep
information flowing.
Harr i s
County
Criminal
Lawyers Associat ion
plans
on
providing
plenty
of
seminars
and
tapes
so you
can get mandatory
Continuing
Legal Educa-
t ion
hours here in
Houston. We hope to get Con-
t inu ing Legal Education approval for Jim Skel ton ' s
Wednesday
sess ions
and provide these f ree to
HCCL
members. As you
know,
some hours can be
se l f - s tudy .
so check with
the
HCCL of f i ce regard
ing viewing tapes t ha t
soon
wil l
be
ava i l ab le .
Local judges and
bondsmen cont inue
to be
support ive of t h i s organiza t ion
as seen
by
the
adver t i sements in t h i s
i ssue. Thank you.
The
at tendance
a t
HCCLA s
luncheons
is
shame-
ful . Clyde Williams has provided exce l l en t
pro-
grams a t
these monthly luncheons and
you
are
mis-
Sing i n t e r e s t i ng and informat ive speakers
when
you do not
come
to the luncheons. Do you want to
keep having the luncheons? High Sher i f f
Johnny
Klevenhagen.
T. R. Coney, Major
Breckenridge
and
s t a f f
are
guests a t the March luncheon. Come t o
the luncheon and t a lk to these folks i f
you
are
having problems a t the j a i l .
Michael Essmyer
( f rom
the s t a b l e s of "Race-
horse" Haynes) and Ben Durant have been appoin ted
to
fill two vacant d i r ec to r ' s pos i t ions . Those
of
you
who
are in te r es ted
in
running
for
o f f i c e r
or di rec tor pOsi t ions need
to
apply soon. Cal l
the
HCCL
of f i ce
for d e ta i l s .
At
the
next
board meet ing (1)
I am propos ing
tha t a
new
membership c l a s s i f i ca t i o n be e s t a b l i s h
ed, tha t being a
sus t a in ing member.
A su s t a i n i n g
member
wil l
pay
annual dues
of
$200.00
and
t h a t
s t a t u s wil l be a
requi rement
for
a l l d i r e c t o r s
and o f f i c e r s o f HCCLA. I t
i s
my
hope
t h a t t h i s
requirement wi l l be made re t roac t ive to t h i s
year ' s o f f i c e r s
and
di rec tors . $2300.00 w i l l be
added
to
the bank account i f
t h i s
i s passed . Thi
addi t ional money
can
be
used to buy
a word
pr o
cessor /computer wi th the
West
Law c a p a b i l i t y t h a
wi l l be made ava i lab le to
you, the
members.
I have reviewed the f inanc ia l a f f a i r s of
t h i s
organiza t ion
for
the
pas t
few years and it
seems
to me tha t
each month t he re
i s
j u s t
bare ly enoug
money to pay
expenses .
This
needs to
be
changed
My goal
i s
to have a t l eas t
$10,000.00
in the
bank a t the end of my term
in
Yay. This money
needs to
be
spent
on
th ings
tha t w i l l help
t he
members such
as (1)
word
processor /computer
to
keep up
with
forms and
informat ion
for
members;
(2) l i b ra ry on cr imina l law tha t
would
be a v a i l
able for members; (3)
educat ional
t apes ; (4) f u l
t ime
s t a f f
members.
As f a r
as
I am
concerned no money
from
HCCL
should
be spent
on
Christmas p ar t i e s , or
anyth in
e lse tha t does not di rec t ly he lp
the
members
learn
to be
b e t t e r
lawyers.
The world
i s f u l l
o
insane, mental ly cr ipp led , depraved, misguided
and soc ia l ly unacceptable
people
who w i l l come
t
you
for help. I f
you
hold yourse l f ou t to be a
lawyer, then
you
have
an
obl iga t ion to
help
thes
people who
did
not get dea l t a
f a i r band in
life
To
do t h i s you
must be prepared . Hopeful ly ,
the
members of
t h i s
organizat ion can work e f f ec t i v e l
to he lp each o ther
do
the
job
we chose to do -
represent
tha t
person we ca l l a c l i en t .
http:///reader/full/10,000.00http:///reader/full/10,000.008/11/2019 1986 March Docket Call
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LETTERS
February 15, 1986
Robert O. Pelton,
Esquire
President,
Harris County
criminal
Lawyers Association
1610 Richmond Avenue
Houston, Texas
77006
Dear Robert:
Enclosed with th is
l e t t e r
is a copy of a car
toon
tha t
appeared in the February
1986
i ssue
of
Docket
Call ,
the monthly publication
of
the
Harris
County
criminal
Lawyers
Association.
I'm
amazed tha t th is crude and heavy-handed
attempt
a t
humor was published.
I t
i s not
funny. On the contrary,
i t
i s both offensive
and
tas te less ,
par t icular ly
in what appears to
have
been
i t s studied ef for t to
portray a l l
three characters as black people. I f we crimi
nal defense
attorneys are
real ly
prepared to
laugh a t the idea of people
being
executed, or
of
the i r
own
lawyers
making
a
joke
out of i t ,
we've
obviously descended to a level of cynicism
and
insens i t iv i ty
unprecedented
even for us.
There are, of course, numberless jokes and car
toons (The Wizard of
Id i s
an
example) portraying
Judges
as-venal
ana-incompetent; jurors
as
stupid
and i r responsible, and defense lawyers as greedy,
shi f t less
and generally
disreputable, i f
not
actual ly
dishonest . These stereotypes
- -
i f they
are
stereotypes - - are
no more deserving
of
per
petuation, or of our express or implied approbation,
than
the equally
t radi t ional
rac ia l or
ethnic jokes.
They are not funny. They are
not
clever.
Rather,
by our acceptance of
them,
they demean
and
degrade
us a l l .
I
wonder
i f
most
of
us
would to lerate
cartoon
humor
attempting to depict the l ighter
side
of the attempt
to exterminate the Jews
during
the Holocaust, or
of
the lynching of black people
in
the South
ear l ie r
in
th is century, or of sexual
abuse
of
children,
or of
del iberate cruelty
to animals, or
of
any
Cartoonist
Terry Proctor 's reply
. . .
(1) I'm color-bl
indo
It never occurred
to
me
that
anyone would see a thumbprint
as
ethnic.
Perhaps
Attorney
Maness didn' t
realize my
cartoons
are done from finger
prints.
(2) It is my bel ief that
i t
is healthy to
poke fun
a t
yourself once in a
whi
Ie. Doc-
ket Call i sn t a public
publication but
a
house
organ for attorneys. This
same
car
toon
ran
in
1978 in the Texas Bar Journal
without
any
unfavorable response.
of
a
multitude of other subjects
that for reason
obvious
to
any
reasonably
intel l igent
person
are
simply
not appropriate subjects for
levi ty . I f
there real ly i s something funny about capi ta l
punishment, I haven' t encountered t during
the
17 years I ve been pract icing law.
You
may
recal l
that prior to John
Spinkel l ink 's
electrocut ion
by
the State of Florida in 1979 h
guards were alleged to have taunted, humiliated
and
r idiculed
him. James David Autry's executio
in 1983 was
preceded by the
same
sor t
of "fun"
among tha t crowd of
real ly superlat ive
human bei
gathered
outside
the Walls Unit
a t Huntsville.
now
seems
as
i f
we've
been infected with the i r
pecul iar sense of humor:
there s nothing l ike
a
good joke a t the expense of a guy
who's about
to
be executed.
without intending to sound
overly sententious, I
believe our business and profession i s an excep
t ionally serious one. A person confronted with
serious criminal accusation wants, and i s
ent i t l
to , an in te l l igent , competent, well-prepared law
not a
stand-up comedian.
We demean
and
t r iv ia l iz
the system,
and
our
role
in i t , when we
act
as
i
t
were
otherwise.
Of course, I recognize
the
consti tut ional r ight
you, and Allen
Isbel l ,
and
Terry Proctor , to pu
l i sh anything
you
damn
well
please. I jus t wan
you a l l
to
know
my view
that t h i s
cartoon i s
de
able and shameful.
i n e r e l Y
you s ,
Michael A. Maness
MAM: wgl
Enc.
(3) Puns about serious matters do not
t ranslate into
a condonation or
endorse
ment
of
the action,
particular ly
when
not
directed
to
any
specific person or inci
dent.
(4)
I
agree
wi
th Attorney
Maness
that
an
accused
wants an intell igent,
competent,
well-prepared
attorney. I will put my
record
up
against anyone
for time
in trying
to improve the public image of attorneys
and our profession.
5) I hope other members of the
HeCLA
wi 1
use
this
column to express themselves, goo
or bad, about the many things
that
appear
:n this fine publ
ication.
8/11/2019 1986 March Docket Call
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e rs y
By
l len C Isbel l
Free pass
to the
fol lowing judges: Judge
Thomas Routt
(208th),
Judge
Doug
Shaver
(262nd),
Judge
Charles Hearn
(263rdl ,
Judge Ted
Poe
(228thl ,
Judge Sherman
Ross
(County Criminal Court
t lO), Judge
Neel
Richardson
(County Criminal Court
ta), Judge Shel ly Hancock (County
Cr iminal
Court
7 )
and Judge
Terracino
(County
Criminal
Court
H2.
At the
March luncheon Jay Burnett
repor ted
on
the work of the amicus
committee
and i t s
br ie f
in
Robinson
v. State (regarding
rese t agreements
in
Harris County
and
the
STA .
Jus t i ce
Ben
Levy
(1s t
Court
of
Appeals) ,
a
jud ic ia l
ac t iv i s t ,
spoke
to
our
luncheon
on
his proposed
pa r en t - ch i ld
privi lege- , emphasizing
the paramount
r ight
of
privacy and the need for
preserving
the i n t egr i ty
and s tab i l i ty
of
the
family.
Parents sending
chi ldren
to
prison
and
chi ldren
sending
parents
to
prison i s
a
spectre of
a to ta l i t a r i an
soc ie ty , in
Levy's
views
Randy Schaffer , our
assoc ia t ion s
exper t
in the parent-chi ld
pr ivi lege,
was present .
Attending the luncheon were
a
number of the
jud iciary besides speaker,
Jus t ice
Ben Levy,
Judge
Angel
Fraga
(County
Cr iminal Court
114),
Judge
Bonnie Fitch (County
Criminal Court 13) , Judge
Sam
Alfano (Municipal Cour t ) ,
Judge Frances
Williams
(County Court 4) , and Chief Jus t i ce
Frank Evans (1s t Court of
Appeals).
How did
Judge
Pat Lykos spend her birthday?
In part , by
at tending the
luncheon of the HCCLA
Clyde
Williams
has been
ge t t ing some
excel len t
speakers
for
our
noon luncheon. In
April ,
Senator Parker will
speak
on the
Grand
Jury
system (he has
a
unique
perspect ive nowl.
In
May,
Judge
Eric
Andell wil l speak about prac t ic ing
juvenile law. In the near fu ture , Dr.
Ron Owens
of
the
Life
Ski l l Resource Center will speak on
Treatment
for
Aggressive Behavior
and i t s
Courtroom
Applicat ion.
The
big N.G. of
the
year goes
to Dick
DeGeurin
for the acqui t ta l of school
pr inc ipa l
Fontenot
. Audley Heath got an
-N.G.
from a
jury. The charge was pros t i tu t ion ; the defense was
ent rap- ment. was recent ly cer t i f ied as
a
criminal
law
specia l i s t .
Frank
Medina got
an
N.G. on an
indecency with
a
chi ld case out
of
the l83rd.
Jury out 5 minutesl Case
arose
out of
a
custody
ba t t l e in divorce cour t . Seems
a
lo t of
cases
s t a r t ing in
the Family Law
Center
are
dr i f t ing
across
the s t r ee t to 301 San Jacinto
Sometimes
defense lawyers l i ke to lose
-
Desmond
Gay
has
los t 7S Ibs . Mark Mueller won an
wN.G.- out of the 263rd, on
an aggravated
sexua
assau l t case
involving
a woman
defendant and
a
S
year old
female chi ld .
The videotape of the ch i ld
was
suppressed
before
the t r i a l
Clyde
Williams
is on
a ro l l
with
2
vic to r ies involving
al leged publ ic - touching- in
Montrose
bars
Mike Fosher
has
had 3
-N.G.'sw in
a row,
the
l a t e s t one being in County Criminal Court for2
publ ic lewdness
Kurt Wentz
got a di rec ted
verdic t of N.G.
in an arson case out of the
339th.
Our
prez.
Robert Pel
ton
has
conducted two
board meetings
without
resor t ing to
four - l e t t e r
adjec t ives , nouns,
or verbsl
How did
a
n ice
boy
from
Abilene
learn
the sa l t y language
of
the
sea?
Seen
a t
the
Country
Playhouse 's product ion o
The
Great
Sebast ians were
Judge
Jon
Lindsay
and
wife
Tony
(she
is
research
lawyer a t the 1s t Cour
of Appeals) His execut ive
as s i s t an t ,
Krischke, was
in
the play and she
and
hubby
Herbert
hosted an a f t e r -p lay pa r ty . Pa t r i c i a Lepe
as s i s t an t , at tended the play
and
par ty . Th
play
is about
wmind reading.
w
Judge Jon Lindsay
appeared to
be
t rying to read the minds of the
audience
whether
they were
th inking
Lindsay
o
Greenwood.
In the a l l of the luck
w
department: on the
second
day
of
the bar
exam
in Houston,
the answer
to
the
essay packet were
dis t r ibu ted , along
wi th
the ques t ionl Mistake caught in t ime to aver
everyone
receiving a
perfect
grade.
Lieu tenan t Je r ry R. Jones has
been promote
to the
rank
of Captain a t a ceremony held o
February 14.
Lieutenant
Jones i s the f i r s t Blac
in the his tory of the Houston Pol ice Department to
a t t a in the
rank
of Captain.
Richard Anderson rep laces
Walter Wiebush
a
legal advisor to the County Criminal Judges
Wiebush
i s
r e t i r ed
to
the
va l ley .
When
Anderso
was an ass i s tan t Dis t r ic t Attorney
in
th
appe l la te
division, he and Calvin Hartmann
rep l i e
to
a 48 page
br ie f with
a
s ing le
one- l ine r b r i e f
The
Appellant
has
f i red an impress ive
l ega
sa lvo, assa i l ing his convict ion , but t i s fo
naught,
for
the b a t t l e was l o s t before t wa
fought - THIS COURT
HAS
NO
JURISDICTION.
Sur
enough,
the
Court
had no ju r i sd ic t ion .
Lesson
before
you wri te a 48 page
b r i e f ,
chec
j u r i sd ic t ion .
8/11/2019 1986 March Docket Call
6/40
by the Texas Board
of
Legal
Specia l iza t ion .
H.C.C.L.A. express
sympathy to the family
of
Judge
Carrol l Weaver (184th
Dist r ic t Cour t) ,
who
passed away af te r a long i l lness . Judge Weaver was
an excel len t t r i a l lawyer before becoming a
judge.
Many
years ago,
when I s ta r t ed
to pract ice
cr iminal
law, I surveyed
the
court r epor ter s
in
the misdeamenor cour ts to
ask who, in the i r
opinions , was the best
D.W.I.
t r i a l
lawyer.
The
almost unanimous opinion was
tha t
Carro l l Weaver
was
the
very best . When
he became
judge,
he
remembered
what
t
was l ike
in
pr ivate
prac t ice .
His fa i rness
to a l l wil l
be
remembered.
His
l i f e
t ime f r iendship
with
Judge Bi l l Ragan is an
example
to a l l
of the meaning of f r iendship.
Terry Proctor ,
the
aborted candidate for
the
230th ruled ine l ig ib le due
to
f au l ty
appl i ca t ion
form. Rumor
i s
tha t Walter Boyd furnished Terry
the
form
Hal
Hudson is
the published author
of
an ar t i c le in "Power
Lif t ing U.S.A.",
the
"Bible"
for a l l
those in tha t so r t of
thing.
The
a r t i c l e is on l i f t i n g
for competi t ion
a f t e r
you've
passed 40, and gives Hal 's schedule
on
the way
to
winning the World Masters
Championship
for the
post-40
group. pic ture i s fea tured l i f t i n g
about 1,000 Ibs looks l ike a "wild-man" Good
l ikeness, 1 ll.
Seen in the cr iminal courts bui lding l a
Friday, February 28, 1986,
was
Jus t ice Murry
Co
of
the Firs t
Court of Appeals. When asked
what
was doing in
the
cr iminal
cour t s
bui lding,
rep l i ed
tha t
he had heard
tha t
r ever s ib le e r ro
were committed
in
t h a t
bui lding and he
checking t out So far Jus t ice Cohen has
found
r ever s ib le er ro r in any case tha t I h
appealed Judge
Bi l l Ragan (County
Crimi
Court
i l
has been
reversed
only four t imas
in
years on the bench.
Candelar io
El
i
zondo
and Terry
Lea
El
inzo
has re located there of f ice to
Two
Houston
Cent
Sui te
1515,
909 Fannin, Houston,
Texas
770
te lephone
number 655-8085 . Jim
E.
Lavine
become
a
shareholder
in
the
firm formerly known
the
Law
Off ices
of Jack B. Zimmermann, P.C. and
now Zimmermann Ii
Lavine, P.C.
Lavine
has
a
become
Board Cer t i f ied as
a
spec ia l i s t in cr imi
Law by the
Texas
Board of Legal Specia l iza t ion
H.C.C.L.A. express sympathy to the family
Judge Carrol l Weaver
(184th
Dis t r i c t Cour t) ,
w
passed
away
af te r
a
long i l l ne ss . Judge Weaver w
an excel lent
t r i a l lawyer
before becoming
a judg
Many years ago, when I s ta r t ed to
prac t i
cr iminal
law, I surveyed
the
court repor ters
the misdeamenor
courts
to
ask who,
in
the
opinions ,
was
the
best
D.W.I.
t r i a l lawyer. T
almost unanimous opinion was tha t
Carro l l
Weav
was the
very
bes t .
When
he became judge,
remembered what t was
l ike in
pr iva te p rac t ic
His
fa i rness to
a l l
wil l be remembered.
His
l i
t ime f r iendship
with
Judge Bi l l Ragan i s
example to
a l l
of
the
meaning of f r iendship.
Let s nca fr il au
e
want
to hear
from you Please
send
us your ideas o r comments regard
ing
i s sues
of i n t e r e s t
to
the
cr iminal
defense prac t ione r and please l e t
us
know changes
in
address and te lephone.
e welcome your
par t i c ipa t ion .
8/11/2019 1986 March Docket Call
7/40
ADVOCATE
y arolyn Garcia
Abraham Lincoln, presumably before
he entered politics on a full time basis,
said that a lawyer's time is his stock in
trade.
This concept has been freely translated
by the Texas criminal defense bar in the
words of a famous Chinese proverb: No
tickee, no washee.
This has carried over to cases where a
Texas trial judge has ordered that a per
son be executed by lethal injection before
sunrise on a given date.
The growing realization that the State
and Federal Governments are dead
serious about expediting these pre-sunrise
dates with the needle, has converted the
members of the criminal defense bar.
with a few exceptions, into Chinese laun
dry men. unwilling to assume the un
popular, unrewarding and unpaying
burden of fighting the State and Federal
judiciary as the State and Federal Con
situtions and the Writ of Habeas Corpus
are emasculated. step by step.
Several weeks ago, Kerry Fitzgerald
and Rusty Duncan asked me to con
tribute a regular column to fhe oice
dealing with capital cases. I agreed, on
the condition that I would be permitted
to
encourage
lawyers to assist in
representing condemned prisoners
in
post
conviction proceedings. The column
will
be centered around death penalty cases,
but the legal issues are applicable to many
areas of the practice of criminal law.
Advocate is orginally derived from
the latin verb, adv()(1Ire. meaning to sum
mon to one's assistance; the noun form.
advocalus, orginally signified an assistant
or helper
of any kind. even an accomplice
in
the commission of a crime. Its present
signification
is
a pleader
of
causes. In
Spanish and French. avocat means
lawyer. I like the word as a noun or verb,
hence the name of the column.
There are over 200 prisoners on death
row
in
the Texas Department of Correc
tions.
1110se
on dircx 1 appeal have retain
ed or appointed counsel. Those for whom
direct appeal resulted in affirmance are
usually represented by volunteer counsel,
if they have a lawyer at all. Far too many
have no counsel.
We have more than 30 capital cases in
our office. about
5
percent
of
the total
number of inmates on death row. Like
us, any other lawyers throughout the
state handle these cases without support
from local, county.
or
state bar associa
tions or from organizations dedicated to
civil liberties. Recently, three scheduled
executions would have taken place but
for the intervention
of
volunteer lawyers.
These condemned inmates went to every
state bar association and every group of
civil libertarians for assistance and found
none until a sole practitioner stepped in.
We are often criticized when we agree to
represent condemned prisoners with an
impending execution date. Many bar
association
leaders and individual
lawyers advise that lawyers refuse to help
in these cases. They suggest that we stand
by and
let
the prisoner die without a
lawyer. The reasoning is that the finan
cial burden on volunteer lawyers is too
great and that the system. if stressed
enough. will find a way to compensate
lawyers for this representation. Perhaps
some feedback from this column will
help lind a solution.
A reason often given for refusing to ac
cept a p i t l ca \e after affirmance by the
Court
of
Criminal Appeals. is lack
of
ex
periem:e or knowledge about the process.
Hopefully. this column
will
serve to
remove those fears. provide some
guidance and encourage lawyers to ac
cept this work or help find others who
will. I've volunteered my office panner.
Will Gray,
as
a regular contributor to the
column. I hope that others around the
state working
in
this area will share their
legal and
prai 1ical
problems.
Death penalty post conviction work
is
not really such an obscure area of the law
for thme who regularly practice trial and
appellate criminal law. The post convic
tion practice involves reviewing trial
records, interviewing witnesses, briefma.
conducting evidentiary hearings with
the
same kind
of
witnesses you might fmd n
any criminal trial, and persuading, by
legal and equitable arguments, the trial of
fact, The only difference is that
one
is not
entitled
to
a jury.
In post conviction proceedings, one is
usually opposed by fonnidable legal
scholars on the prosecutorial side, and
some times on the bench.
They provide a challenge not generally
offered in the courtroom in a
day
to
day
trial practice because
of
the issues involv
ed. The trend, of course, is
to
deny the
writ; the challenge. to find some running
room.
The writ
of
Habeas Corpus
is
the ex
clusive post-conviction remedy in a
felony case in Texas. For that reason, this
first column
will
provide introduction
information into the Great Writ.
t
is im
portant to keep in mind that the Writ of
Habeas Corpus is not a remedy just for
the condemned. The Writ should be an
integral and important part of any law
practice.
The writ can be used
to challenge ex
cessive bail, to compel the production
of
minor children in court on custody
mat-
ters. to test the legality of confinement
for contempt. to challenge confinement
on
a faulty indictment or information,
to
demand an out of time direct appea l (not
a substitute for appeaJ) and
to
collaterally
attack a conviction and sentence,
among
other things. The writ is a matter
of
right.
but does not issue as a matter or course.
The application for
writ
of habeas
corpus is
the notice to the person
holding another in confinement
to
pro-
duce that person and show cause why
the
confinement should continue. Habeas
Corpus means You have the body.
The writ is the precept to the confiner to
produce the body.
8/11/2019 1986 March Docket Call
8/40
dvocate
For criminal cases, the procedure is
outlined in Chapter 11
of
the Code of
Criminal Procedure, and particularly
-
ticle 11.07. Article 11.01, Vernon's
Ann.
Code
of
Criminal Procedure defines the
writ
of
habeas corpus as:
the remedy to be used when any
person
is
restrained in his Uberty. It
is an order issued by a court or
judge of competent jurisdiction,
directed to anyone having a person
in his custody,
or under
his
restraint, commanding him to pro
duce such person at a time and
place named in the writ, and show
why he
is
held in custody or under
restraint.
In this first colwnn, we are providing a
form writ that can be used in state nd
federal court in postconviction felony
cases. In this instance, the form is filled in
to illustrate how the issues are framed.
The writ is med with the District Clerk
of
the county
of
conviction and
is
return
able to the Court
of
Criminal Appeals at
Austin, Texas. The District Clerk assigns
a file number ancillary to that
of
the con
viction being challenged, i.e. XXXX-A,
and transfers it to the trial court
of
the
original conviction. The clerk
of
that
court sends a certified copy to the state's
attorney in that court who has
15
days to
respond. f the state's attorney does not
respond, the allegations are still deemed
denied.
Within
20
days
of
the state's response
date, the trial court must determine
whether there are unresolved factual
issues which require an evidentiary hear
ing and if so, must within that time, enter
an order designating the factual issues to
be resolved. f the trial court fails to act
within the 20 days, then that failure con
stitues a finding that no factual issues
need be resolved.
Factual issues may be developed and
resolved through evidentiary hearings,
depositions,
interrogatories,
or
af -
fidavits. The fact findings of the state
court are given deference in
all
subse
quent proceedings. The Code sets no time
limit in which the trial court must act
after entering an order that unresolved
factual issues exists.
Whether or not an evidentiary hearing
is held, the record
of
the proceedings and
findings of the trial court, if any, are then
transmitted to the Court
of
Criminal Ap
peals and the Court may grant or deny
relief upon the findings and conclusions
of the hearing judge or may make in
dependent findings and conclusions. The
Court of Criminal Appeals need not
follow the findings and recommenda
tions of the trial court. f a writ
is
referred
to
the Court
of
Criminal Appeals without
a hearing being conducted in the trial
court, the Court may return the case for
an evidentiary hearing if the Court deter
mines that unresolved factual issues exist.
Exhaustion
of
state remedies
is
a
necessary prerequisite to seeking relief in
federal court. A postconviction writ
of
habeas corpus will be dismissed in federal
court absent proof that the writ was
presented and denied by the state convict
ing court unless the state waives exhaus
tion
of
state remedies. The law is clear
that
all
legal issues that should and could
be presented in the original or first writ
filed must be presented on the first
postconviction go-round. f one cannot
show substantial cause why the issues
were not presented in the first applica
tion, the writ will be dismissed for abuse
of
the writ , regardless of the merits
of
the issues.
Over the next several months, we will
print other forms, and suggest practice
and procedures for effective presentation
of
the writ. Hopefully,
we
can develop a
forwn for discussions
of
significant state
and federal statutory and case law
changes that will not only help in
evaluating constitutional issues for the
writ, but also for resolving how to deal
with the difficulties in finding representa
tion for condemned prisoners after direct
appeal, and for issues germane to the
general practice
of
criminal law.
Readers can contact me directly in
Houston or through
th oice
for par
ticular areas
of
interest
or
question. I
would like to include a question and
answer section at the end
of
each colwnn.
Readers provide the questions and I U try
to find the answer. Hopefully together,
we can advocate.
Those who choose to advocate, and
who commit themselves to the brutal task
of facing the State and Federal judiciary,
can save valuable time by adapting the re-
quired Federal habeas corpus form for
use in the State Application for Ha
Corpus. This first session includes a
dard writ form for filing in the conv
State court. See Appendix
A .
Next time
we
meet, the adaptati
this State Application to a Petition i
United States District Court
wi
demonstrated. Following that, the
cedure in the United States Court
o
peals for the Fifth Circuit will be det
s the Chinese say, a journey
thousand miles begins with a single
8/11/2019 1986 March Docket Call
9/40
much
l e s s
the
Supreme Court .
We were taught on
TRI L T CTICS
y
im Skelton
Some
of
you have
l ived
the scene and some of
you
are
about to l ive i t . The door has j us t
slammed on what
i s ca l led the
plea
barga in ing
process
and
you f ind yourse l f sandwiched between
some
old worn
out
ex-prosecutor
who
th inks
he
i s
a judge and a group o f r ecen t ly
burg lar ized
c i t i
zens who th ink they can be
ju ror s .
The
D has j u s t
f in ished
his
voir
di r e .
This
i s a speech tha t a l l prosecutors make before they
get down to the ser ious bus iness
of
s t r ik ing a l l
blacks,
long ha i r s
.. Unitar ians and miscellaneous
minor i t ies
from the
ju ry
pane l .
I t
i s now your
tu rn . You must t a lk . Words
coherent
words -
must come out o f your mouth.
You
have
got to say
something.
The night before you
thought
of every
scam
known
to
man to get a r e - s e t .
Maybe I ll
have a
car wreck
or
Perhaps my Mother may
die, o r
even
i f she
doesn ' t
d ie , how
can
I
fake
her funera l?
You put in a despara te c a l l to your c l i en t , Have
you had your appendix removed? No such luck,
that
was
done
the
four th t ime
he
went to TDC.
Everything
has f a i led ,
and it i s too l a t e to tu rn
back.
Every cr imina l lawyer has gone through such
an exper ience and
i t is
high t ime tha t we
did
something to make t h i s welcome to
the
wonderful
world
of
cr iminal
law
l e s s
t r aumat ic .
t
should
be one of the major
aims of
t h i s organiza t ion
The
Harris County Criminal Defense Lawyers
- -
to
of fe r support
and
guidance
to the young inexper i
enced
pr a c t i t i one r . This
is the
so le
reason for
t h i s column,
so
we
can have
a forum where the
more exper ienced
lawyer can share t h e i r
mistakes
and
knowledge.
Think back to law school. What did you l ea rn
there tha t l a t e r helped you t ry your f i r s t case?
Who taught you the
predicate
for ge t t ing a tape
recording in to evidence? What law professor to ld
you about the have you
heard
ru le and
the
di f
fe rences
between a charac te r and reputat ion wi t
ness? Or,
how
to perfect
er ror
when
making an ob-
j ec t ion?
Most of
us were t o ld
long
and endless
s to r i e s
about
what
Jus t ice Black
said to
Jus t ice
Douglas about
Jus t ice
Frankfur te r ' s
opinion
of
the
exc lus ionary ru l e
and
how Black would say
snot things to
Frankfur ter
back in the robing
room.
Most of the t ime, these s t o r i e s were r e l a t
ed by someone who had never been before a JP Court
and on about the exc lus ionary
ru le but
were never
to ld
who
had
the burden of proof in a suppress ion
hear ing , or how a motion to suppress motion should
be writ ten, or how a suppress ion
hear ing i s
s t a r
t ed , or the p i t f a l l s
of
cu ra t ive admiss ions , or
that the defendant could be ca l led for
the
l i m i t
ed
purpose
of the suppress ion hear ing . We l e a r n
ed a l l these valuable
lessons
by
sending people
to
j a i l s
as we s tood there
with
our thumbs s tuck
in the lower par t of our diges t ive t r ac t .
None of t h i s i s taught in law school
because
most
of
the people t eaching there know
the
day to
day
mechanics
of t ry ing cases . They have
never
bothered
t h e i r great legal brains
with
the
mun-
dane t a sk o f t r y ing to help
some s u l l e n
kid who
was busted for t e s t dr iv ing someones car fo r sev
en months. I
l ea rned t h i s
when
one of my
profes
sors t r i ed to
defend his
g i r l f r i en d ' s
son . This
was a lso a
l esson in the
dul l ing
e f f ec t hormones
can
produce
in the
bra in . The D
was
ab le to i n
t roduce the
offense repor t as
a
business record
and thus
ended
t h i s mul t i - l e t t e red p r o f ' s
sk i rmish
with
the
r ea l
world.
I t
a l so
ended h i s c l i e n t ' s
freedom
as
he
got
10 big ones.
And
t he g i r l
f r iend
was
non
to
happy
e i t h e r ,
she moved up a
notch
by
tak ing up with a
plumber .
Law
school
i s
mentioned
for one reason. You
should
not
f ee l badly
because you have an i r r a
t iona l urge
to vomit in
the
judge ' s commode
when
the
b a i l i f f
br ings
in
a
j u ry
panel .
The
s imple
fact i s that you
are ignorant . Law
school has
made
you
tha t way. Law school
made
you a lawyer
without ever
having
to t ry a case. I t
has
taken
your
i na t e
ignorance and Socra t ica l ly
brought out
the
best
of it. Law school wil l t each you such
s tupid
th ings
as ,
Your honor, may t h i s e xh i b i t
be published
to the jury? Try
t h i s
little num-
ber with an East Texas
ju ry
and
see
how long it
takes them to ask
I s the death penal ty
poss ib le
for DWI s?
or Can
we k i l l
the
lawyer too?
My
f i r s t
sugges t ion
i s
to admit
to
your se l f
and your
brother
lawyers tha t you
are insecure
and
tha t you do not know what the h e l l
you are
doing. Then go
get some
help .
Find some e xpe r i
enced lawyer
who
has managed
to overcome
h i s l e g
a l t r a in ing
and pick h i s b ra in .
Most
defense
lawyers wil l
bend
over backwards to help you -
i f
you wil l ask. Of course , t he re a re a few who
are so wonderful tha t they wil l share t h e i r sec
r e t s
only with God
or
r epor te r s with
r ea l l y
grea t knockers, but t h a t ' s the except ion .
8/11/2019 1986 March Docket Call
10/40
I know that
i t
i s dif f icul t
to admit your
ig
norance when
your
office walls are heavy
laden
with
plaques, diplomas, cer t i f ica tes and awards
extol l ing your
vir tues .
I remember
one of these
plaques collectors quite well.
Every time
he was
set for
t r i a l
he would panic, get diarrhea and
show up at my house. e
would
spend
the
night
s i t t ing on the john, whimpering and
flushing
un
t l
I
agreed
to
keep
him
from
losing
face.
I
helped him through
several
t r i a l s
- I had to ,
the
water b i l l got out of control -
and
now he is
doing
f ine .
The
next
step is an unlearning process.
You
must unlearn a l l that
gibberish
that you were
taught in law school. Knock off
a l l
tha t lawyer
l ike
language and relearn to ta lk l ike a normal
human being. Think of working with a jury in the
same vein as courting
your
sweetheart. Think
about
th is for a moment. What do you
suppose
would happen i f
you
whispered
sof t ly
in her
ear,
You are
the
sole judge of
the
credibil i ty of my
advances and the weight to be given
my
advances .
ow
many
years would
you
get? ow
many
cold
showers
would
you
have to take?
I f
most
of
us
courted
l ike
we t r ied law sui t s we would
have
to
embalm
our hearts and
bodies because
we would
never
need
them.
Hand-in-hand with
th is
leraning
to ta lk
again
process
comes the retuning our feel ings
process.
Simply s tated,
you
have to
unstarch your under
wear and re join
the
human
race.
The overal l
theory of
t rying a
case
is quite simple. I t is
one
human
being (the
lawyer) ta lking
to
a group
of
human beings
(the jury) about
giving a fa i r
break
to
another
human being
(the defendant) .
Un
t l you understand
th is you will never
be
suc-.
cessful .
There will
be numerous suggestions in future
columns
about th is
unlearning process and
help
ing you deprogram
your
legal education. Until
then, I
would
l ike to leave you with one f inal
t o u ~ t about the value
of
the esoter ic logic
that we are taught
in
law
school.
If a hen and
a half
could lay an
egg
and
half
in
a
day and
half ,
how long
would
i t
take
a monkey with a
wooden
leg to kick
a l l
the seeds
out
of
a
d i l l
pickle?
8/11/2019 1986 March Docket Call
11/40
ASKING
FOR
GASKIN MATERIAL
M Y BOLSTER
THE STATE'S WITNESS
NEW
MEM ERS
WEL OME
By: Allen C. I sbe l l
When you request , receive , and read
"Gaskin"
mater ia l
before
the ju ry ,
and
then do not ask any
quest ions
based
on
the
previously writ ten
s ta tement or
repor t
by
the
witness ,
you
l eave the
impression t ha t
the
wi tness ' t r i a l tes timony
is
the
same
as his
statement
wr i t ten shor t ly
a f t e r
the event .
Unwittingly,
you
have
bols tered
his
tes timony.
How
do
you
avoid
t h i s , s ince the
ru les
a t
present do
not
allow a defense
lawyer
to have the
statements or
repor ts pr ior
to the
witness '
test imony?
You may f i l e a
motion
reques t ing
t ha t
the
cour t excuse the jury
so you may
request , receive,
and
read the repor ts before cross-examining the
witness. The
expecta t ion t ha t t h i s motion wi l l
be
granted in most cases is low.
To
preserve
the
issue for
appeal , s t a t e
clear ly
the
ground for the request and the harm
the
typ ica l
procedure
causes . A poss ib l e
statement
of t ha t ground i s :
By forcing me
to request ,
receive , and read the
"Gaskin"
mater i a l in the
j u ry ' s
presence, the Court is forc ing me to
bols ter
the witness ' testimony
i f I do
not
cross-examine him.
At th i s
point ,
a
t ac t i ca l
decis ion
must
be
made.
Ei ther
you accept the
typ ica l
procedure
which
require ' reques t ing and reading
the
repor t or
s ta tement in the presence of the ju ry ; or ,
you
s t a t e
for the record
t ha t
you bel ieve the harm is
so grea t , t ha t you wil l not
reques t the
repor t
or
s ta tement s ince you cannot receive
and read
them
outs ide the ju ry ' s presence.
You may
want
to
suggest various
procedural
s teps the
Court
could t ake
which
would permit you
to request , receive and read the
repor ts with
minimal
inter ference
with
the
order ly
progress
of
the t r i a l .
Sponsor
Terrance Windham
Johnny
G i l l
William
G. Rosch, I I I
J .Burne t t /F .Cant
Jay S. Nedell
Cathy Burnet t
David A.
Bishop
Cathy Burne t t
Paul
J . Smith
Cathy Burne t t
George
S. Hebert
Cathy Burnet t
Michael J . Brown
Jim Dougherty
Mark S. Byrne
Robert Scardino
Carol
A Neelley
Randy McDonald
Ellen
L. Swierczek
Ron Hayes
Kevin Howard
Robert
Pel ton
Raymond L. Fisher
William J .
Rice,
Margaret A. Poissant
Mary
K.
Quinn
Eliecer Barreiro
Candy El izondo
Mikahela
Speedon
Candy El izondo
Nickolas S. Barrera
Candy
El izondo
Joseph A. Rumbaut
Veryl
E. Brown
Kathryn
Geiger
Johnny G i l l
Angelica
Landa
Jose
Cantu,
J r .
Mi
l l e r Wallace
Robert
Pel ton
Robert
J .
Sussman Robert
Pel ton
Esmeralda Pena
Garcia Pel ton/El izondo
Rogelio Garc ia
T.M.
Reardon
Joel Pera l ez
Robert Pel ton
Will ie J .
Rhodes
Robert
Pel ton
Casbeer
Sne l l ,
J r .
Robert
Pel ton
Jose Cantu, J r .
Fe l ix
Cantu
Clarence
Thompson
Robert
Pel ton
William
Pavlov
Robert
Pel ton
Bob
Burdet te
Cathy
Burnet t
Neil C. McCabe
Jack
Zimmermann
Kenneth
R. Poland
Robert
Pel ton
John
Ph i l l i p s
Johnny
G i l l
Roy L. Abner Johnny G i l l
Juani ta
Jeys
Ber ta Mejia
Mary
E.
Conn
Robert
Pel ton
Cha.rles
Freeman
Johnny
G i l l
Frank
T.
Coleman
Wil l iams/Guerrer
Rose Marie Kennedy Randy McDonald
T. M Reardon Robert Pelton
Joe Hernandez Candy
El izondo
Katherine Scardino Johnny G i l l
Robert
J . Pandak
Cathy
Burnet t
Lawrence T. Newman Clyde Will iams
tings
COMBINED BOARD
MEETINGS - Juveni le , Family, Crim
nal , Civi l , County Criminal Judges, 2nd
TueSday
noon,
of each
month, Administrat ion Bldg.
c a f e -
t e r i a ,
Judge Love Chairman, permiSSion.
CIVIL
JUDGES
BOARD
MEETINGS
- Tuesday, of ea
each
month,
noon,
Administrat ion
Bldg.
ca fe t e r i a
Judge Sol i to , Chairman.
CRIMINAL JUDGES BOARD
MEETING
-
Wednesday o
each
month,
noon, Adminis t ra t ion Bldg.
ca fe t e r i a
Judge Jon Hughes, Chairman.
8/11/2019 1986 March Docket Call
12/40
MEMBERS ON THE CURRENT GRAND
JURIES
by: Ronnie Harrison
Below is the Grand Jury Lis t
for
the
February, March,
and
Apri l Term:
208th (meets Monday
and
Thursday)
1. Ms.
Ina
K. Zellers (Asst .
Foreman),
4914
Gammage Houston, Texas 77021, Phone 747-56721
2. Mr. Harvey Petree , 1405 Atlanta ,
Deer Park,
Texas 77536,
Phone
479-6223;
3. Mr.
William Erwin,
5688 Green Tree,
Houston, Texas 77056;
4.
Mr. E. B.
Dick,
3014 Maple Grove,
Houston, Texas 77092,
Phone
681-2954;
5. Ms. Lenora
Sorola,
P.
O.
Box 9093,
Houston,
Texas
77261, Phone
923-6374;
6. Mr. Darryl Hurt
(Foreman),
3444
Ash Lane,
Deer
Park,
Texas 77536,
Phone
479-8116:
7. Ms.
Jer ry
Ann Mil le r
5135
Bayou Timber,
Houston,
Texas 77056,
Phone 961-0741;
8. Mr.
Aquino
Torres, J r . 14907
Windfern
Fores t , Houston,
Texas
77040, Phone 896-7615;
9. Ms.
Flora Clark,
5946 Southington,
Houston, Texas 77033, Phone 645-8504;
10.
Liz Latham, 706
Rutgers,
Deer
Park,
Texas
77536,
Phone 476-4607;
11.
Robert O. Blaicher, 5618 Wigton,
Houston,
Texas 77096, Phone 723-6345;
12. L.
Q.
Black, 2705 Sweetgum, Pasadena,
Texas
77502, Phone
944-9132;
209th
(meets Tuesday and Thursday)
1.
Mrs.
Ann Sweatt, 2806 Eagle, Houston,
Texas
77002,
Phone 529-8694;
2. Harold L.
Matthews,
3548
Ruth, Houston,
Texas 77002,
Phone
528-5195;
3. Louis
Brandt
(Asst .
Foreman),
302
Timberwilde, Houston,
Texas
77024, Phone 461-4455;
4. Wayne Wickman
(Foreman),
10100 Southwest
Freeway, Houston, Texas 77074;
5.
Tom Reader, P. O. Drawer 90969, Houston,
Texas 77290-0969;
6.
Bi l l Smith, 13626 Portshi re
Houston,
Texas 77079, Phone 464-3362;
7.
Claudette
Keis, P. O. Box 20167, Houston,
Texas
77225
..
8. Ada Kiat ta 803 W. Fr iar Finch,
Houston,
Texas
77025 Phone
680-0179;
9.
Mary
Louise Dial,
1300
Woods
Edge
Lane,
Houston,
Texas
77024, Phone 782-2240;
10. Robert
Mooring,
1202 Dorsetshire Or. ,
Pasadena, Texas
77504,
Phone
487-3186;
1.
Connie
Cummins,
11406
Greenbay, Houston,
Texas
77024;
12. Mrs. Marie Bani,
10051
Cedarda1e
Houston, Texas
77055J
228th (meets
on
Tuesday
and Friday)
1. Mrs. A1vera Ernest ine
Taylor,
Dwinnel1, Baytown, Texas
77520,
Phone
427-2836
2.
Ms. Donna Broussard, 11711 Pecan
Phone
558-5545
3. Janel le DeCastro, 16819
Rockst
Houston,
Texas 77084,
Phone 550-0455:
4. Bryon Calfee (Foreman), 702
De
Humble,
Texas 77338, Phone 446-2886;
5. O. B. Lee, 4818 Burning
Tree, Bayt
Texas 77521,
Phone
424-8231;
6. John
B.
Niday, J r . Box 262003, Hous
Texas
77009, Phone
644-3831;
7. David
Contreras, 3923 McLean
Baytown,
Texas 77521,
Phone
424-1686;
8.
Robert A. Barnard (Foreman), 1
Pinewind, Humble,
Texas 77346, Phone
852-1935;
9.
Ms. Bennie
Kadjar, 3404
Creek bend
Baytown,
Texas
77521, Phone 422-6766;
10. Robert McFarlane, 734 Internat ional
B
*64, Houston,
Texas
77024, Phone 683-0890;
11.
I sabel
Vara, 904 Maltby,
Houston, T
77011,
Phone
926-2981;
12. Robert F.
McWhirter,
7900 Bel la i re
Houston,
Texas 770361
230th
meets
Monday
and
Wednesday
1 Frank
Schulman,
8002 Skyline, P
782-8192;
2.
W.
Lane
Rivers
(Foreman),
13635
Rock, Houston, Texas 77079, Phone 468-5218;
3. David Galiado,
8503
Ferra ro L
Houston, Texas 77037, Phone 448-7677;
4.
Ella
Oliphant, 3915
Madden, Hou
Texas 77047, Phone
738-6502;
5.
J .
Wayne
Roberts ,
Phone 333-5814;
6.
Jo Laydde
Boies,
1702
Vassar,
Hous
Texas
77098, Phone
523-3339;
7. Inez
Bonney,
1601
Gregg, Houston,
Te
Phone
227-7374;
8. Victor ia
Richards (Asst .
Foreman),
Rio Vista
Phone 747-5994;
9.
Lydia Velasquez Myers,
10715
Sage
Be
Houston, Texas 77089;
10.
Albert
Charles Evers, 10402
H
Houston, Texas 77034,
Phone
946-4212;
11. Yolanda Manrique,
3851 Teakwood, LaP
Texas
77571;
12.
George
Binder, 3 Gessner , Houston, T
77024,
Phone
464-9215;
8/11/2019 1986 March Docket Call
13/40
232nd
meeta
Wednesday
and Priday
1.
Mrs.
Frank
E.
-Hellen-
Nelson, 2701
Virginia ,
Baytown, Texas 77520,
Phone
422-8039:
2.
Abner
Anderson, J r . (Asst . Foreman),
5630
Benning Dr., Houston,
Texas
77096,
Phone
721-2380:
3.
Landon
V.
Davis,
J r . ,
13328
Oak Leaf
Lane, Houston, Texas 77015, Phone 453-1081:
4.
Claro
Carreon,
4402
Lido Lane, H ouston,
Texas 77092,
Phone 686-8378:
5. Mrs. James L. -Myrtle- Walker, 11702
Wendover,
Houston, Texas 77024, Phone
465-1126
6.
Ju l ias
Wilburn, 3722 Ward, Houston,
Texas
77021, Phone
747-4873:
7. Olga R. Gallegos, 8182 Ju l iabora,
Houston, Texas 7io17
Phone
644-8881:
8.
Mario
Quintero,
2 Mockingbird Circle ,
Houston,
Texas
77074, Phone
772-0940:
9.
Mrs.
Noble D. -Al l ine- Jones, J r . ,
408
South Burnet Dr.,
Baytown,
Texas
77520,
Phone
424-5763:
10. Edna Ruth Pr
ice ,
2603 Noble Street ,
Houston, Texas 77026, Phone 228-2577:
11. Robbie Ray
deVires ,
802 Piney Pt . ,
Houston, Texas
77024, Phone
467-1216:
12.
Fred Van
Osdell
(Foreman), 3822 Drummond
Houston,
Texas 77025,
Phone 665-2001:
RECEPTIONIST
W NTED FOR SMALL
DOWNTOWN L W
FIRM
IN THE
TEXAS
COMMERCE TOWER. C LL KATHERINE
SCARDINO
T
229-9292.
Listed
below
you
wi l l
find
a l i s t of the
Grand Jury Bai l i f f s and Dis t r i c t
Attorneys s
names, phone numbers and
address
and
Dis t r i c t
Clerk
s
off ice
phone
number
for
Grand
Jury
quest ions.
1. Bai l i f f s :
Henry
Callahan, Johnny Scot t ,
Cindy Thorpe (Phone
22l-5880)
2.
Dis t r i c t
Attorneys:
Jim Mosely, Chief:
Eldred
Hammond Allen McAshan, Chuck Cottingham,
Cheryl Turner
and Don
McCormick (Phone 22l-6170)
3. Dis r ic t Clerk s Office fo r Grand Jury
Questions (Phone
221-7857)
4. Grand
Jury
Address:
201
Fannin,
9th
Floor, Houston, Texas 77002
W NTED
PUBLIC
DEFENDERS
EXCELLENT POTENTIAL
FOR
MOTIVATED C ~ I M I N L DEFENSE
ADVOCATES.
THREE POSITIONS
FOR LRIYERS NEW GRADUATES
TO
TI:O
YE RS EXPER
IENCE.
ONE
POSITION FOR A
L WYER
WITH
TWO PLUS YE RS
EXPERIENCE.
SEND
RESUMES TO CHARLOTTE
HARRIS
PUBLIC DEFENDER
WITCHITA FALLS TEXAS
76301.
8/11/2019 1986 March Docket Call
14/40
8/11/2019 1986 March Docket Call
15/40
Judge Musslewhite , looks l i ke a courtroom
should .
TAL S y
Judge
helly
ancock
I
wil l
miss
the high ce i l ing , and the wooden pan
Tbanks
to
the
Harr is County
Criminal
Lawyers
Associat ion for
providing t h i s "Court Tales" c o l
umn. I f
I
am
d i l i ge n t meeting
deadl ines ,
the
county cr iminal
and
the c r imina l d i s t r i c t judges
can use "Court Tales" to communicate to
lawyers
such i tems as upcoming p o l i t i ca l events
or
changes
in courtroom
procedures .
For ins tance,
an
a t to r
ney ' s
presence i s requi red a t sentenc ing because
t h i s
i s a c r i t i c a l s tage of
the t r i a l . Most
of
the
county cou r t s r equ i re
a
waiver
for
the law
yer ' s presence on
the
judgment snd sentenc ing
date .
There
has
been
a shake-up of the
locat ion
of
some
of the
county cr imina l cour ts . County cr imi
nal
Court
#4 (Judge Franc i s Will iams) has moved
across the
ha l l
on
the
second f loor
of the
cr imi
nal
cour ts bu i ld ing . County Criminal Court #6
(Judge
Bob
Musslewhite) i s now loca ted on the 7th
f loor
where I used to be
located .
I
have moved
my cour t (County Criminal
Court
#7) to the second
f loor where Judge
Williams
held cour t .
This
spr ing there
wil l be another
f ru i t
basket - turn-over of some of
the county
cr iminal
cour t s
when
some
const ruct ion
in the
old f i r e
s t a t i on
bui ld ing i s completed. Expect cour ts
13
and 14 to have
t h e i r own courtrooms
then.
There
a l so may be movement t h i s spr ing among
cour ts
2,
11, 1
. .
,and, maybe, court 10.
The county courtroom on the
7th
f loor of the
cr imina l cou r t s
bui ld ing
that has been
occupied
by
th ree judges: Judge Jimmy Duncan, me, and now,
W NTED BLACK S T A T ~ T E S
PLEASE
CALL PAUL
SMITH
T
271-2413.
e l ing . I made the
move
because the
s t a f f ' s o f
f ices on the second
f loor
i s
much roomier and
be t t e r ar ranged than
those
accomodat ions
on t he
7th f loor . But, yes, a l l the
courtroom
on t he
second f loor have
tha t ce r ta in
p las t iC look.
Oh wel l , t h a t ' s
progress .
The d i s t r i c t cou r t s
have
moved t h e i r cour t
manager and his s t a f f to the
f i r s t f loor
of the
cr iminal cour ts bu i ld ing . This
space a t
d i f
feren t t imes has been the tax of f i ce , cons tab le ' s
of f i ce
and
neighborhood j u s t i c e cente r . Court
manager
Jack
Thompson inv i tes a l l a t torneys to
drop by and
say he l lo .
What does
the d i s t r i c t
court manager ' s s t a f f
do?
They do a l o t but
Jack
makes it
sound
simple by answering,
as s i s t
ing
the d i s t r i c t
cour ts .
Drop
by
and l e t
Jack
get more
de ta i led .
The cour thouse
is
mourning
everyone ' s good
f r iend, the
l a t e Judge
Car ro l l Weaver
o f the 184th
th D i s t r i c t Cour t . Months ago, Judge Weaver c a l
led Judge Hearn
from his hosp i ta l
room.
He asked
Judge Hearn to
conduct the funeral se rv ice . Judge
Hearn
did
a wonderful
but
d i f f i cu l t
job eulogizing
Judge
Weaver. I t
was
sa id
a t
the
funeral
t ha t
Carro l l Weaver was sometimes blunt .
But
he a l
ways
ta lked
s t r a i g h t and di rec t ly
from the hear t .
so t r ue .
Good-bye Judge Weaver.
You
l e f t
a mark on the
many
people
you
knew dur ing
your 30
plus
years of
prac t ic ing
law
and
being
a
Judge.
TEXAS DRUNK
DRIVING L W
may be ordered directly from the
Dubl isher. Wri
te
Butterworths
a t
11004
Metric
Blvd., Austin, Texas
78758
or
cal l
512)
835-7921.
DETAI LS:
Volume 1 -- tabbed 5 ~ x 3 1 looseleaf
approx.
320
pages.
Volume 2 -
tabbed
8 ~ x l l
looseleaf approx.
275
pages.
Published
January 1986.
$150.00
for
2-Volume
set .
8/11/2019 1986 March Docket Call
16/40
ail ond Service
1404 CONGRESS
HOUSTON, TEXAS 77002
(713) 227 1777
We
would l ike to thank the HARRIS COUNTY CRIMINAL
DEFENSE
LAWYERS
for taking
advantage
of
our fee program. We feel
this
program
has
afforded
additional CASH FLOW to you by paying less for bail bond fees.
LAWYERS BAIL BOND SERVICE would
like
to extend our low cost ree program
along
with
immediate
jail
release
for
your
clients.
We
are confident
as
an
extension o your office
that
we can represent your clients in a proCessional and
courteous manner
of
which you would be proud.
LAWYERS BAIL BOND SERVICE can handle
your bail
bond needs anywhere in
the United States. Through
our Underwriting
Department, we can help you take
advantage or out of town or state resources not only
to
pay our fees but to
collateralize
or
pay your rees
as
well.
Please call 227-1777
or
our 24 hour immediate
JAIL
RELEASE SERVICE.
TER VIS ARE AVAILABLE: BILLING TO ALL ATI'ORNEYS:
800.00 BONDS
=
13).00 + 20.00
1,500.00BONDS 200.00 + 20.00
2,000.00AND ABOVE 1 1;16 20.00
FEDERAL BONDS, MIDIlCIPAL BONDS, and JP BONDS are negotiable on a per
client basis.
http:///reader/full/1,500.00http:///reader/full/2,000.00http:///reader/full/1,500.00http:///reader/full/2,000.008/11/2019 1986 March Docket Call
17/40
8/11/2019 1986 March Docket Call
18/40
W ~ ~
WASTE YOUR
TIME
SITTING IN
COURT?
RE-ELECT JUDGE JIMMIE D U N C ~
COUNTY CRH1H1AL
COURT
AT LAvJ #3
"HE
HAS
SAVED Y UR PROFESSIOfJAL
TH1E
FOR 29
YEARS."
Paid for
by Judge
Jimmie Duncan Appreciation Committee Gerald Payte
Treasurer
12011 Prado Wood
Cypress
Tx. 77429
8/11/2019 1986 March Docket Call
19/40
JUDGE BONNlb: FITCH
COUNTY
CRIMINAL COURT
AT
LAw
No. 13
1302 PRESTON
HOUSTON TEXAS 77002
713/221-7950
February
10, 1986
PRE S S R E LEA S E
Judge
Bonnie
Fitch has announced her
candidacy
for the
Democratic nomination
to the County
Criminal
Court
a t
Law
No. 13
bench.
Judge
Fitch ,
incumbent,
was
appointed in August,
1985.
The
Judge
received
her
legal
t ra ining a t
Texas Southern University
School of Law. She
has
been practicing s ~ n c e May 1975 and
has
experience
in criminal law. She i s married and
has
three
children .
Judge Fitch served as an
Associate Municipal
court
Judge
for four and a half years pr ior to taking the County r ~ m i n a l
Court bench.
She has also served as a
Master
in the Family
Dis t r i c t
Court
and as Master in Chancery in the
County
CiVll
Court .
Judge Fitch brings
to
the bench her
experience
as a
ci ty
Judge.
She describes herself as a
people's
person
and
enjoys
being
a par t of
the Judiciary .
She spends
her spare
time working
in
community
service organizations.
She
i s
a
member of the American Bar Association#
National
Bar Association,
HOuston Bar Association, Houston Lawyers Association and
Black Women Lawyers Association. She is l icensed to practice
in the State of
Texas,
the Southern D i s t r ~ c t of the
United
States , the Fif th and Eleventh Distr ic ts of the United States
and
the Supreme
Court
of the
United
States
KEEP JUDGE
ANGEL
FRAGA
COUNTY
COURT
14
JUDGE FR,I\GA HAS BEEN INTHE GEilERAl PRACTI CE
OF lAW CIVIL &
CRIMINAL
FOR
24
YEARS
SERVED FeR
(9) YEARS AS AN ASSOCIATE MUNICIPAL
COURT
JUDGE
(1974-1983)
APPOI1nED
BY
U N N I I ~ O U S
VOTE
OF
HARRIS
COUNTY
COMMISSIONER'S
COURT
(5-0)
ON JANUARY
1J
1986
TO
THE
COUNTY CRIMINAL COURT 14
THE FRAGA FAr'lIlY
IS
\1ELL KNOv N AND RESPECTED
IN
THE
COW1UNITY
LET'S KEEP JUDGE FRAGA -
HE IS
DOING AGLJDD JOB
8/11/2019 1986 March Docket Call
20/40
fiRST COURT Of PPE LS
By
Henry
L
Burkholder, II I
Cases
reported 1/29/85
th ru 2/29/86
James
McQueen
v.
s t a t e ,
1/29/86,
J .
Duggan.
This
case demonstra tes the
PICK
AND CHOSE RULE OF CONSTRUING
THE
EVIDENCE
ON
APPEAL TO
UPHOLD
THE
JURY'S VERDICT OF GUILT.
D was i n d i c t e d fo r murder ,
but
found g u i l t y of a ggra va t e d
a s s a u l t . (Never mind why, t h a t ' s not i mpor t an t he re ) . S ta t e ' s
eyebal l
witness
saw D s t r ike W
with
a s t ick ,
l o t s of
blood, and
t h e CW
b e i n g a s s i s t e d home by f r i e n d s .
Ot her W's s a i d CW
compla ined
o f headaches
and
d izz ines s and
t h a t D s l e p t ll
t he
nex t day.
Medical examiner
t e s t i f i e d t h a t CW exp i red from c lub
wounds,
bu t
t h a t
t he
i n j u r y
had
to
have
been
i n f l i c t e d
8
to
24
hours before death. D argues tha t because
of
the ME's t ime frame,
t he evidence
was i n s u f f i c i e n t
to f ind t h a t
it
was
h i s c lubb ing
t h a t caused the dea th of t he CWo The
Cour t
o f Appeals held , t h a t
t he j u ry was
f r e e
to accep t t he ME's
cause o f
dea th , but
r e j e c t
his est imat ion of when the cause incurred .
STATE
MAY COMMENT
DURING JURY ARGUMENT CONCERNING COUNSEL'S
FAILURE TO GO BACK MORE THAN TEN YEARS WITH D'S CRIMINAL RECORD
ALSO, APPLICATION OF THE "IT 'S NOT REVERSIBLE UNLESS IT HURTS
RULE.
At tri l D t e s t i f i e d t h a t he had not been
convic ted
o f a fe lony
o r misd/mt in t he
l a s t
t en years . (Guess
what
happened to D 19
years
ago ). S
in
argument to the ju ry
t r i a l
hin ts tha t the re was
a good reason why D's a t t did
not
go back
pas t
10
years .
Court of
Appeals
he ld
it
was
e r r o r
fo r
t he s t a t e
to
argue to t he j u ry t ha t
t he
r u l e s
o f
evidence
was
h i d i ng
someth ing
from them.
However,
t he Cour t he ld t he e r r o r HARMLESS, s ince "no
new
and
harmful
fac t s
were
in jec ted.
NOTE:
A
d i f f e ren t
r e s u l t might
have
occurred had S to ld
the
jury
out r igh t
tha t
D had a convic t ion more than
10 years old.
8/11/2019 1986 March Docket Call
21/40
APPLICATION
OF THE
OBVIOUS
AS
ALL GET-OUT' EXCEPTION
TO
THE
CORRECT GROUND CONTEMPORANOUS OBJECTION RULE.
Famil iar ru le
tha t
when an object ion i s made, the grounds for the
ob j ec t i on
must be s t a t e d , somet ime wi th u n r e a l i s t i c p r e c i s i o n .
Here,
D's
counse l
objec ted to S 's
j u ry
argument
concern ing t he
previous ly reviewed ground,
but
the
only
ground he could th ink of
qu ick ly enough was t h a t t he argument was hor r i b l e . CA noted
t ha t ob j ec t i on
was vague
and conclusory . Never the less ,
the
[ t r i a l ] cour t
should have
been made aware y
any ob jec t ion
a t
a l l
t ha t the
Sta te ' s
argument was improper. Error was
not
waived by
f a i l u r e . to make a
precise
enough object ion .
NOTE:
Att was
excused
from having to
tender
a more precise
ground,
but was not excused
from making
an object ion .
Tony
Ray Prejaean Sta te , 1/16/86, J . Levy
HARRIS
COUNTY
AGREED
RESET
FORMS HELD
WAIVERS,
FOR
STATUTORY
SPEEDY TRIAL PURPOSES.
Once aga in , t he Agreed Resee '
form
s tha t everyone must
s i g n
to
ge t out
of f e lony
c our t
he ld
t o cons t i
t u t e an exc ludab le
pe r iod
of t ime under the Speedy Tr ia l Act. Opinion does not address how
an a t t can s ign one of
these
forms wi thou t waiv ing
the
r e s e t
per iod of t ime .
One idea i s to
change t he
form
from Agreed
Reset
to
Not ice of ReseL Also, one might wri t e 0 demands a
speedy t r i a l on the
form.
Remember tha t the Act excludes per iods
of
de lay r e s u l t i n g from a
con t inuance g ra n t e d a t
the r eques t
o r
with the
consent
of
D.
Art ic le 32A.02 sec t ion 4(3) C.C.P.
D S
DEFENSE
THAT
t:E
HAD SPECIFIC
INTENT
TO
COMMIT
ONE
CRIME
DOES
NOT STOP JURY
FROM
FINDING THAT
THROUGH THAT
CRIME
0
ALSO
INTENDED TO COMMIT ANOTHER CRIME. THE DEFENSE THAT COULD HAVE
ONLY ONE
INTENT
AT
A
TIME
FAILS
ON
APPEAL.
o
conv ic ted
by a j u ry of a rson , a s p e c i f i c i n t e n t c r ime .
0
t e s t i f i ed tha t he intended to s t a r t f i r e in bui ld ing , but only as
a
means of commit t ing suic ide . Viewing the
evidence
in the l i gh t
most
favorab le to the ju ry ' s
ve rd ic t ,
t he j u r y
could have found
t ha t 0
intended to
des t roy himself
as
well as the
bu i ld ing .
Roy Lee
Fontenot
Sta te ,
1/16/86 J . Dunn.
STATE
DOES NOT NEED
A
JUDGMENT TO PROVE UP ENHANCMENT PARAGRAPH.
D'S PRISON RECORD
IS
SUFFICIENT.
Record i s
s u f f i c i en t to
uphold
an
enhancment paragraph ,
where
s t a t e
in t roduces a pen
packet which
is no more
than
D's pr i son
f i l e .
No
judgment in f i l e . However, nota t ion in f i l e shows
c t
and
cause
number.
CA held t h i s
was
enough.
8/11/2019 1986 March Docket Call
22/40
Ex par t e Ernest
Five l ,
1/16/86, J .
Smith
FAILURE TO CONDUCT
24
HOUR
HEARING DOES NOT
ENTITLE 0 TO RELEASE.
o
f i l ed pre t r i a l
habeas
corpus,
demanding
re l ease
because
he
was
not given
a probable cause hearing with in 24 hours. 0
i s
en t i t l ed
to
PC hear ing
under
Gerson Pugh, 420
U.S.
103 (1975). 0 i s
en t i t l ed
to t h i s
hear ing
with in 24
hrs . ,
under Sanders v.
City
of
Houston, 543 F. SUpPa 694 (S.D.
Tex. 1 9 8 2 . 0 IS
NOT ENTITLED TO
RELEASE SIMPLY BECAUSE HE WAS NOT GIVEN A HEARING FAST ENOUGH D
e n t i t l e d to
r e l i e f on ly
i he a l l e g e s and proves no PC.
Bernard
Stuar t Coleman Sta te , 1/23/86, J .
Dunn
EVIDENCE INSUFFICIENT TO
CONVICT D
ON
DWI
WHERE
STATE COULD NOT
PUT D
DRUNK
BEHIND THE WHEEL.
APPLICATION
OF THE CORPUS DELICTI
RULE.
O f f i c e r s
a r r i v e on scene
o f
wreck. D, s t a nd ing o u t s i d e o f one
wrecked ca r , i n fo rms o f f i c e r s t h a t he was d r i v i n g , and t h a t he
ran i n t o
o t he r
veh i c l e . D was no t
a lone
in h i s
veh i c l e .
O f f i c e r
could t e l l D in toxed. EVI INSUFF
TO
CONVICT.
D s
s ta tement
could
pu t
him behind
the
wheel , bu t t he s t a t e could no t show when D
became in toxed.
Furthermore, D s ext ra judica l confess ion alone
i s
not
enough
to
c onv ic t . S t a t e must c o r rob D s s t a t e m e n t wi th o t h e r ev idence
showing
the
t ru th
o f
sa id s ta tement . Here, no evi
to
corrob
what
D
said.
Dif ferent
r e su l t i f (1) car was reg i s te red
to D
and
D
was
alone, o r
(2)
eyewi tnesses
t ha t
D
was
dr iv ing
alone.
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OURT
OF
CRIMIN L PPE LS
By Cathy
Burnett
David L. SCHUESSLER No.
289-83
- Opinion on Sta te s
and Appel
Ianfrg--Pet i t ion
for
Discret ionary Review: Reversed/Judgment of
Acquitall Entered - Judge W. C. Davis [T.
Davis,
Teague and
Campbell
concur
in
resul t ;
Onion, McCormick and White dissent] -
2/5/86
SUFFICIENCY OF EVIDENCE: WH T IS
THE
PROPER STANDARD OF REVIEW
WHERE SUFFICIENCY OF EVIDENCE
HAS
BEEN
CHALLENGED
ND N
AFFIRMATIVE
DEFENSE IS
PRESENTED?
This was a murder prosecution
in which
victim
was
D s
4 year
old daughter;
D
raised insanity
defense
.
Cour t of
Appeals
reve
rsed and remanded,
concl ud ing that
D s
affirmative defense of insanity had been adequately
established
and
thus,
the jury finding on insanity was contrary
to the
great
weight
and preponderance
of the evidence. The same
issue
was
before
TCA in Van Guilder No.
899-84;
delivered
11/6/85).
The
t e s t , reject ing
the CIA
approach as
creating
i t se l f as a 13th juror with veto power over the
verdict ,
i s :
When the sufficiency of the evidence to support an
aff i rmative defense
i s a t issue
the appellate court must
review
a l l the evidence
presented
which bears on the
aff i rmative defense
in
the l ight most favorable to
the
impl ic i t
finding by
the
jury with respect to such
defense. Then, the appellate court
must
determine i f
any ra t ional t r i e r
of
fact could have found that the
defendant fa i led to prove his defense by a
preponderance
of the
evidence.
Here
the
TCA reviewed
the
evidence
and found
i t
legal ly
insuff ic ient . Among
the
important
factors were: Sta te did
not
produce
any rebutting evidence, in fact i t s evidence tended
to
confirm D s
insanity
in many respects; Sta te s
doctor declined
to
express opinion
on D s legal
sanity and
s ta ted he believed
in
the
judgment of some of
the defense doctors without
question, he
also
diagnosed D as suffering
from
acute
paranoid psychosis;
two
j a i le rs
who
t e s t i f i ed
tha t
they observed no bizarre behavior
from
D saw him
af ter
he had been
receiving
treatment for 3 months;
evidence from
the defense
standpoint
included
rec i ta t ion of
several instances of
bizarre
behavior from both s trangers and
family members.
Cecil
Lavelle
ARCHER
No.
211-84
-
Opinion
on
Appellant s
pet i t lon-rof lDiscret ionary Review: Affirmed - Judge W.C. Davis
2/5/86
VIOLATION OF -THE RULE-: EXPANSION OF
THE
H RM ANALYSIS:
Art.
36.03 C.C.P. is
the
provision concerning witnesses placed under
-the
Rule-,
TCA
expands
the harm
analysis for
appellate review;
the standard was previously
found in
Haas v.
Sta te ,
498 S.W,2d
206
(1973)
The
former standard
was:
(1)
Did
the
witness
actual ly
hear
the testimony of
the
other witness, and
8/11/2019 1986 March Docket Call
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(2) Did the
witness s testimony
testimony of
the
witness he
actual ly
he
contradic t the
ard.
TCA
when
found
f i r s t
rule too narrow
because i t did
witnesses
conferrred
among
themselves
not
provide
for
without
court
permission. The second
c r i t e r i a
was too
res t r ic t ive because
when
two State or defense witnesses confer
outside
the courtroom on a
matter
pert inent
to the
case
their
testimony
is l ike ly to
COINCIDE not conf l ic t . Thus the Haas rule
has
been
expanded as
follows:
(1)
Did the
witness
actual ly
hear
the
testimony of the
other witness, or
did
the witnesses
confer
among
themselves without court permission; and
(2) Did
the witness s testimony
contradict
the
testimony of
the witness
he actual ly
heard,
or i f
two
or
more s ta te witnesses
viola te
the rule by conferring on
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