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U'- ItiV ta' let ilng
1018 r ~ s t o n 6th fl
Houston TX 77002
DOCI(ETa[[--
May/June 1994 A Publication of Harris County Criminal Lawyers Association
Randy McDonald
Tanya L. Elliott
Loren A. Detamore
Winston E. Cochran, Jr.
Paul St. John
Charles L. Henke, Jr.
George Parnham
Lloyd W. Oliver
Sandra Gary
Bob Mabry
Mark A. Goldberg
1994 CANOl ·AlES
HCClA
Officers & Directors
1993-1994
President ..... ....Dan Cogdell
President-Elect ........ ..... ......Jim Skelton
Vice-President ... .... . ... ....Deborah A. Gottlieb
Treasurer ..... . .... .... .........Dick Wheelan
Secretary .David Cunningham
Immediate Past President. . .Kent A. Schaffer
Chairman of the Board ......... . George Parnham
Directors:
W.B. Bennie House, Jr.
Marjorie A. Meyers
Ron Hayes
Daniel Wannamaker
Kenneth W. Smith
Allen C. Isbell
Rosemary Garza
Rick Brass
Joseph A. Porto
Mary E. Conn
Lloyd W. Oliver
Mark A. Goldberg
Danny Easterling
Wayne Heller
Clyde Williams
Past-Presidents 1971-1993
C. Anthony Friloux (1972-1973)
Stuart Kinard (1973-1974)
George Luquette (1974-1975)
Marvin O. Teague (1975-1976)
Dick DeGuerin (1976-1977)
W. B. "Bennie" House, Jr. (1977-1978)
David R. Bires (1978-1979)
Woody Densen (1979-1980)
Will Gray (1980-1981)
Edward A. Mallett (1981-1982)
Carolyn Garcia (1982-1983)
Jack B. Zimmermann (1983-1984)
Clyde Williams (1984-1985)
Robert Pelton (1985-1986)
Candelario Elizondo (1986-1987)
Allen C. Isbell (1987-1988)
David Mitcham (1988-1989)
Jim E. Lavine (1989-1990)
Rick Brass (1990-1991)
Mary E. Conn (1991-1992)
Kel1/lA. Schaffer (1992-1993)
President's Club
David Cunningham
Kent A. Schaffer
Docket Call
Editor ....... . . ...... _.. . ....Allen C. Isbell
Associate Editor ..........Robert Pelton
Design & Production .. .Donna K. Kleszcz
ADVERTISING RATES
Full Page $300.00
112 Page $150.00
114 Page $75.00
Business card size $37.50
Distribulion500 copies per issue. Articles and other edi-
toriat contributions shoutd be sent to the Editor, 202
Travis , Suite 208, Houston 77002 or the Association
office at 405 Main SI. , 303, Houston 77002 Telephone
(713) 227-2404.
2 DOCKET CALL
DOCKET CALL May/June 1994
Contents
Hearsay .......................................................4
Sentencing Options 1994, Part II ...................................5
To Tell The Truth ...............................................12
Illegal Expenditure or Investment Statute ..........................15
A Fair Trial at Last? Theus, and The Criminal Defendant with "Priors" ..18
Perusing the Code of Judicial Conduct ............................20
Update on The Value of a Jury Consultant ... , ......................23
ELECTIONS 1994
June 14 & 15, 1994 - Criminal Courthouse
301 San Jacinto, Cafeteria area - 9 to 12 noon
PLEASE VOTE!
Annual Banquet - June 30,1994
CONTINUING LEGAL EDUCATION
WEDNESDAY APPELLATE UPDATES
30 I San Jacinto
12:00 noon, I 77th Di strict Court 0 1:00 MCLE
July 1,1994 HCCLA Nuts & Bolts Seminar Series 1994
183rd Dist rict Courtroom, 30 I San Jacinto, 12:00 Noon Friday.
Federal Guilty Pleas - David Gerger
August 5, 1994 Criminal Appeals - Kris Woldy
June 9, 1994
July 14,1994
HCCLA Board Meeting, Thursday noon, Scanlan Bldg. ,
405 Main, 2nd floor conference
HCCLA Luncheon Meeting
Treebeard' s at The Church, 1117 Texas, 2nd fl . church aud.
12:00 noon Thursday.
June 23,1994
Senator John Whitmire - Criminal Justice Reforms
July 21, 1994
June 14 & 15,1994
Annual Elections - Criminal Courthouse
301 San Jacinto - Cafeteria Area - 9-12 noon
June 30,1994
Annual Banquet - The Houstonian - 6:30 pm
.July 17-30, 1994
Trial Practice Institute Summer 1994
NCDC, Macon, GA, call (912) 746-4151
July 9-16, 1994
Western Trial Advocacy Institute
14th Annual Criminal Defense Seminar emphasizing
Communication and Trial Skill s, Laramie, Wyoming.
For information call (307) 766-2422.
"Law will never be strong or respected unless it has the sentiment of the people
behind it. If the people of a State make bad laws they will suffer for it. They will
be the first to suffer. Suffering and nothing else will implant that sentiment of
responSibility which is the first step to reform."
by James Bryce, American Commonwealth, Vol. I, pg. 352
MAY/JUNE 1994
Elections 1994 - HCClA Board of Directors
About The Nominees:
George L. Parnham
Admitted to State Bar of Texas. 1969; also admit-
ted to practice U.S. Supreme Court; U.S. COUl1 of
Appeals, Fifth and Eleventh Circuits; U.S. District
COllrt for the Southern District of Texas. Education:
Loyola University (B.S., 1963); University of Texas
at Austin (J.D., 1970). Board Certified, Criminal
law, 1983. Member: Houston and Federal Bar
Associations; State Bar of Texas; Texas Trial
lawyers Association; Charter Member of Harris
County Criminal lawyers Ass ociation (current
Chairman of the Board); Texas Criminal Defense
lawyers Association; National Criminal Defense
lawyers Association; American Trial lawyers
Association, Climinal Division. Have guest lectured
in criminal law courses at South Texas College of
law; published an article on Criminal
Discovery/Search and Sei zure in "Docket Call" and
have tried cases in numerous state and federal juris-
dictions throughout the United States.
Paul St. John
I am a native Texan and a twenty-seven year resi-
dent of Houston. I received a Bachelor of Arts
degree in Psychology from the University of
Oklahoma in 1982, and a Doctor of Juri sprudence
degree from The University of Houston in 1985.
I am admitted to practice before the United States
d.istrict of Texas, as well as the Fifth Circuit Court
of Appeals.
Since 1990, my practice has focused primarily on
the defense of the criminally accused. My member-
ships include the Harris County Criminal lawyers
Association, Texas Criminal Defen se lawyers
Association. State Bar of Texas, College of the State
Bar, Houston Bar Association, Houston Young
lawyer s Association and the American Bar
Association. I have been active on several HBA
committees and have served for the last two years
on the State Bar Penal Code and Criminal
Procedure Committee.
Lloyd W. Oliver
Background and Education: Former
Teacher/Coach, Sheriff's Deputy, Prosecutor,
Criminal Defendant, Inmate, Notary Public, Trial
lawyer for 18 years - Criminal Courts of Harris
County; Board Certified, School of Hard Knocks,
often in contempt of court.
Sandra Gary
r am a refornled Hanis County Prosecutor seek-
ing the position of Secretary for H.C.C.L.A . My job
qualifications include writing skills perfected by
copious note-taking from D.A. file s. And as my
clients will attest. 1 am willing to work long, hard
hours for little or no pay. On a serious note, I am a
oraduate of Texas A&M University and U. of H.
Law School. I have counseled juveniles on a volun-
teer basis and 1 am active in my church. I welcome
your suppOIt.
Kenneth W. Smith
Graduated Pan America University with a B.A.
1973 and University of Houston with a J.D. 1976.
licensed to practice law 1976. Member of
HCClA, TCDlA, HBA, and the State Bar.
Director of HCClA for 2 years. Contributed articles
to Docket Call .
Loren A. Detamore
r am a cross between a "damn yankee" and
practically native Texas. A "damn yankee" having
been born, raised and gone to school in Columbus,
Ohio, and practically native Texas Jiving in Houston
since 1966. Having gone to and graduated from The
Ohio State University (pre Woody Hayes), Bachelor
of Chemical Engineering, I'm a "buckeye" which is
defined as a worthless inedible nut similar to a chest·
nut. It took three law sc hool s, University of
Houston, University of Tulsa, and finally Duquesne
University, Pittsburgh for J.D. 1964. I have been
practicing criminal law almost exclusively since
1983.
Judy Prince
1 have been a member of HalTis County Criminal
Lawyers Association since 1991, when 1 started my
practice. HCClA hus the potential for being much
more active, powerful and influential. I believe that
it should be, and [ am willing to devote the neces-
sary time and hard work toward that goal. To
achieve this goal, r believe that we need to increase
membership. and we could do so by increasing the
benefits of membership.
There is a wealth of experience and knowledge
within the organization that could be utilized. We
need to find more ways to gather and share informa-
tion and knowledge, and we need an active and
hard-working Board of Directors who are commit-
ted to improving and strengthening the organiza-
tion. These are the goals I would seek as one of
your directors.
J. Charles Whitfield, Jr.
J.D. Degree in 1957 from South Texas College of
law, Private practice since that date. The last 7
years practice limited to Criminal law. Board
Certified in Criminal Law since 1975.
Public Service: State Representative from Hanis
County representing Harris County at large for four
terms. ran for State Senate and lost. Ran for
Congress in 1976 and lost.
Tanya L. Elliott
Graduate of South Texas College of Law in 1992.
Intem Harris County Disu'ict Attorneys Office 1992.
Member of the Texas State Bar since May, J993.
Currently practicing in Criminal Di strict And County
Coults. Member in good standing of HCClA.
Bob Mabry
A Houston native who grew up in Deer Park.
Bob Mabry graduated from Au stin College in
Sherman, Texas in 1982 with a degree in philoso-
phy. While a st udent , he successfully managed a
friend's political campaign. He got his J.D .. from
South Texas in 1990. He was on Law Review and is
admitted before local federal courts and the
Northern Di strict. He has been commissioned to
write an article for Proof of Facts 3d. and teaches
Adult Education courses in law, philosophy and
scripture at Emerson Unitarian Church. Bob hopes
that he might be a voice on the Board for younger
lawyers.
Charles L. Henke Jr.
Education: The University of Houston law
Center. Houston Texas· Juris Doctor, May 1992;
Admitted State Bar of Texas, Nov. \992; Admitted
U.S. District Court. Southern District of Texas, Feb.
1993; Admirted U.S. District Court, Northern Distlict
of Texas, May 1994; Admitt.ed U.S . District COUlt,
Eastern District of Texas. May 1994; Admitted U.S.
Coult of Appeal s for the 5th Circuit, June 1993.
Nov. 1992 - Present - Began my own law prac-
tice specializing in the representation of individuals
in criminally-related matters. With an emphasis on
white collar crime, I have handled virtually every
type of State criminal case as well as a limited num-
ber of Federal criminal <.:ases. Representative clients
include individual s charged with capital murder.
dru g crimes, robbery, burglary. sexual assault.
assault. OWl and many more.
Winston E. Cochran, Jr.
Winston Coch.ran was an assistant district attor-
ney in FOl1 Bend County and Harris County from
1980 to 1991. concentrating on appeals and heaJth
and pollution cases. He left the D.A. ·s office for an
unsuccessful run for state representative in 1992.
Since then he has been in private practice. concen-
trating on criminal defense. particularly appellate
matters, with a few civil cases as well. He is con-
tributing author of the State Bar Criminal Appellate
Practice manual.
Mark Goldberg
Mark Goldberg has been a member of
H.C.C.L.A . for seven years. During that time he has
served on the Board of Directors and 2 terms as the
organization's treasurer. He has been responsible for
numerous c.L.E. criminal defense seminars.
Mark Goldberg believes that H.C. C.L.A. as the
largest criminal defense specialty association.
should provide opportunities for new attorneys to
learn defen se work, as well as provide a fOlum for
the exchange of ideas and challenges to the mol"
experienced defense attorneys in Harris County.
FUl1hermore, H.C.C.L.A. should act as a voice in
communicating courthouse problems to the judges
and prosecutors.
Nominations for 1994-1995
President-Elect: Randy McDonald,
George 1. Parnham
Vice-President: Mark A. Goldberg, Lloyd
W. Oliver
Secretary: Sandra Gary, Kenneth W.
Smith
Treasurer: Dick Wheelan, Loren A.
Detamore
Directors: Paul St. John, Judith Martin
Prince, Kenneth W. Smith; W.B. Bennie
House, Jr., Loren A. Detamore, J.c.
Whitfield, John E. Crow, Harry A. Loftus,
Jonathan Munier, Will Outlaw, Moses
Sanchez, E. Ross Craft, Tanya L. Elliott,
Bob Mabry, Dick Wheelan, Charles L.
Henke, Jr., Winston E, Cochran, Jr.
Elections will take place on Tuesday and
Wednesday, June 14 & 15, 1994 at the
Criminal Courthouse Bldg., 301 San
Jacinto, cafeteria area from 9:00 to 12:00
noon. PLEASE VOTE!
DOCKET CALL 3
MAY/JUNE 1994
Hearsay
• • •
by Allen C. Isbell
Rusty Herman is on a roll.
the 5th Circuit reversed and
ordered a case dismissed; the 14th
Court reversed and remanded a
non-death capital for trial; an
aggravated assault dismissed, and
a misdemeanor assault dismissed!.
...1van Lopez Victoria won a
reversal from the 5th Circuit also
in a narcotics conspiracy case ....
Mary Conn is on the move. Her
new address is 3000 Smith, Tel.
520-6333.
The desperation of the Harris
County judiciary to beat lawyers
at softball was proved when they
invited WaIter Boyd to play on
their team. They won! due to
Boyd's uncanny athletic prowess
(or so he says) .... Judge Ted Poe
honored by the Cystic Fibrosis
Foundation at the ] 994 "Celebrity
Wai ters Gala." Among the
celebrity waiters were Judge
Miron Love, Judge George
Godwin, Judge Eric Andell,
Judge Pat Lykos, Jack
Zimmermann, Judge Hannah
Chow, Judge Ruben Guerrero,
Judge Michael Peters, Judge
Brian Rains, and Judge Carl
Walker.
Local attorneys will speak at
the 20th Annual Advanced
Criminal Law Course in Dallas
July 25-28, 1994: Cathleen C.
Herasimchuk, John Ackerman,
Marjorie A. Meyers, Robert A.
Morrow, Gary Trichter,
Catherine Burnett, Jim Lavine,
Dick DeGuerin, and Judge Lupe
Salinas. For the 20th year, yours
truly's invitation to speak was lost
in the mail.
Become a
Member of
HCCLA!
Dallas may be a fun place to
be in July, but you need to be in
Houston for the Criminal Practice
Seminar June 15-18, 1994, at the
SOllth Texas College of Law. This
is a must for lawyers represent-
ing indigent clients. To be certi-
fied or to be recertified locally to
represent indigents, you must
attend all or part of this semi-
nar. In other words, no atten-
dance; no appointments. This is a
great seminar, even if you do not
represent indigents. It covers the
1994 Penal Code changes, the new
law of administrative license revo-
cation, and other changes that
everyone needs to know. You can
earn 21.50 C.L.E. hours for as lit-
tie as $135.00 (HBA member; pre-
registration). Contact administra-
tive office of the District Courts
for more information.
Lily Warden is now coordina-
tor for Judge Mejia (315th
District Court) .... Misty Jones is
the new coordinator for Judge
Salinas (351st District Court).
Rosemary Garza is appointed to
the Legal Services to the Poor in
Criminal Matters Committee by
State Bar President Jim Branton.
New Members
Welcome!
Member Sponsor
Mark 1. Kelly Loren
Detamore
Bob Mabry
Lloyd Oliver
Moses M. Sanchez Lloyd Oliver
Will Outlaw
Lloyd Oliver
Edward W.
Barnett, Jr. Dick Wheelan
Justice B. Adjei Bill Dupont
Nancy G. Revelette Dan Cogdell
Shannon Momorl
seeks volunteer
work in a law
office for skills
training to use
after graduation.
Contact 733-4275
4 DOCKET CALL
MAY/JUNE 1994
Sentencing
Options 1994,
Part II by Robert Pelton
[Editor's note: last issue (Marchi April 1994), Robert Pelton started a series on
Sentencing Options. This article continues where the previous article ended.]
Sec.B. DWI COMMUNITY
SUPERVISION.
(a) Ajudge granting community
supervision to a defendant con-
victed of an offense under Chapter
49, Penal Code, shall require as a
condition of community supervi-
sion that the defendant submit to:
1) not less than 72 hours of
continuous confinement, if
the defendant was punished
under Section 49.09(a); not
less than 10 days of continu-
ous confinement, if the
defendant was punished
under Section 49. 09(b) or
(c); or not less than 30 days
of continuous confinement if
the defendant was convicted
under Section 49.07, and
2) an evaluation by a superviso-
ry officer or by a person,
program, or facility approved
by the Texas Commission on
Alcohol and Drug Abuse for
the purpose of having the
facili ty prescribe and carry
out a course of conduct nec-
essary for the rehabilitation
of the defendant's drug or
alcohol dependence condi-
tion.
(b) A judge granting communi-
ty supervision to a defendant con-
victed of an offense under, Section
49.08, Penal Code, shall require as
a condition of community supervi-
sion that the defendant submit to a
period of confinement of not less
than 120 days.
(c) If the director of a facility to
which a defendant is referred
under Subdivision (2) of
Subsection (a) of this section
determines that the defendant is
not making a good faith effort to
participate in a program of reha-
bilitation, the director shall notify
the judge that referred the defen-
dant of that fact.
(d) If a judge requires as a con-
dition of community supervision
that the defendant participate in a
prescribed course of conduct nec-
essary for the rehabilitation of the
defendant's drug or alcohol depen-
dence condition, the judge shall
require that the defendant pay for
all or part of the cost of such reha-
bilitation based on the defendant's
ability to pay. The judge may, in
his discretion, credit such cost
paid by the defendant against the
fine assessed. In making a deter-
mination of a defendant's ability
to pay the cost of rehabilitation
under this subsection, the judge
shall consider whether the defen-
dant has insurance coverage that
will pay for rehabilitation.
(e) The confinement imposed
shall be treated as a condition of
community supervision, and in the
event of a sentence of confinement
upon the revocation of community
supervision, the term of imprison-
ment served hereunder shall be
credited toward service of such
subsequent confinement
(f) If a judge grants community
supervision to a defendant con-
victed of an offense under
Sections 49 .04- 49.08, Penal
Code, and if before receiving
community supervision the defen-
dant has not submitted to an eval-
uatien under Section 9 of this arti-
cle, the judge shall require the
defendant to submit to the evalua-
tion as a condition of community
supervision; If the evaluation indi-
cates to the judge that the defen-
MAY/JUNE 1994 DOCKET CALL 5
·.
dant is in need of treatment for
drug or alcohol dependency, the
judge shall require the defendant
to submit to that treatment as a
condition of community supervi-
sion in a program or facility ap-
proved or licensed by the Texas
Commission on Alcohol and Drug
Abuse or in a program or facility
that complies with standards
established by the community jus-
tice assistance division of the
Texas Department of Criminal
Justice, after consultation by the
division with the commission.
(g) A jury that recommends
community supervision for a per-
son convicted of an offense under
Sections 49.04-49.08, Penal Code,
may recommend that any driver's
license issued to the defendant
under Chapter 173, Acts of the
47th Legislature, Regular Session,
1941 (Article 6687b, Vernon's
Texas Civil Statutes), not be sus-
pended only if the defendant was
21 years of age or older at the time
of the commission of the offense.
(h) If a person convicted of an
offense under Sections 49.-
04-49.08, Penal Code is placed on
community supervision, the judge
shall require, as a condition of the
community supervision, that the
defendant attend and successfully
complete before the 181 st day
after the day community supervi-
sion is granted an educational pro-
gram jointly approved by the
Texas Commission on Alcohol and
Drug Abuse, the Department of
Public Safety, the Traffic Safety
Section of the Texas
Transportation, and the communi-
ty justice assistance division of the
Texas Department of Criminal
Justice designed to rehabilitate
persons who have driven while
intoxicated. The Texas
Commission on Alcohol and Drug
Abuse shall publish the jointly
approved rules and shall monitor,
coordinate, and provide training to
persons providing the educational
programs. The Texas Commission
on Alcohol and Drug Abuse is
responsible for the administration
of the certification of approved
educational programs and may
charge a nonrefundable applica-
tion fee for the initial certification
of approval and for renewal of a
certificate. The judge may waive
the educational program require-
ment, however, if the defendant by
a motion in writing shows good
cause. In determining good cause,
the judge may consider but is not
limited to: the defendant's school
and work schedule, the defen-
dant's health, the distance that the
defendant must travel to attend an
educational program, and the fact
that the defendant resides out of
state, has no valid driver's license,
or does not have access to trans-
portation. The judge shall set out
the finding of good cause in the
judgment. If a defendant is
required, as a condition of com-
munity supervision, to attend an
educational program, the court
clerk shall immediately report that
fact to the Department of Public
Safety, on a form prescribed by
the department , for inclusion in
the person's driving record. The
report must include the beginning
date of the person ' s community
supervision. Upon the successful
completion of the educational pro-
gram, the person shall give notice
to the community supervision and
corrections department. The
department shall then forward the
notice to the court clerk. The court
clerk shall then report the date of
successful completion of the edu-
cational program to the
Department of Public Safety for
inclusion in the defendant's dri-
ving record. If the department
does not recei ve notice that a
defendant required to complete an
educational program has success-
fully completed the program with-
in the peliod required by this sec-
tion, as shown on department
records, the department shall sus-
pend the defendan t' s dri ver' s
license, permit, or privilege or
prohibit the person from obtaining
a license or permit, as provided by
Section 24(g)(2), Chapter 173,
Acts of the 47th Legisla ture,
Regular Session, 1941 (Article
6687b, Vernon's Texas Ci vii
Statutes). This subsection does not
apply to a defendant if a jury rec-
ommends community supervision
for the defendant and also recom-
mends that the defendant's dri-
ver's license not be suspended.
(i) If a defendant convicted of
an offense under Sections 49.-
04-49.08, Penal Code, is p l ~ e d on
community supervision, the judge
may require as a condition of
community supervision that the
defendant not operate a motor
vehicle unless the vehicle is
equipped with a device that uses a
deep-lung breath analysis mecha-
nism to make impractical the oper-
ation of the motor vehicle if ethyl
alcohol is detected in the breath of
the operator. The judge shall
require the defendant to obtain the
device at his own cost. The
Department of Public Safety shall
approve devices for use under this
subsection. The provisions of
Section 23A(f), Chapter 173, Acts
of the 47th Legislature, Regular
6 DOCKET CALL
MAY/JUNE 1994
Session, 1941 (Article 6687b,
Vernon's Texas Civil Statutes),
apply to the approval of a device
under this subsection and the con-
sequences of that approval.
Notwithstanding the provisions of
this section, if a defendant is
required to operate a motor vehi-
cle in the course and scope of the
defendant's employment and if the
vehicle is owned by the employer,
the defendant may operate that
vehicle without installation of an
approved ignition interlock device
if the employer has been notified
of that driving privilege restriction
and if proof of that notification is
with the vehicle. This employment
exemption does not apply, howev-
er, if the business entity that owns
the vehicle is owned or controlled
by the defendant whose driving
privilege has been restricted.
U) The judge shall require a
defendant who is punished under
Section 49.09, Penal Code, as a
condition of community supervi-
sion, to attend and successfully
complete, before the end of the
defendant's period of driver's
license suspension, an educational
program for repeat offenders
approved by the Texas
Commission on Alcohol and Drug
Abuse. The Texas Commission on
Alcohol and Drug Abuse shall
adopt rules and shall monitor,
coordinate, and provide training to
persons providing the educational
programs. The Texas Commission
on Alcohol and Drug Abuse is
responsible for the administration
of the certification of approved
educational programs. The judge
may waive the educational pro-
gram requirement only if the
defendant by motion in writing
shows good cause. In determining
good cause, the judge may consid-
er the defendant's school and work
schedule, the defendant's health,
the distance that the defendant
must travel to attend an education-
al program, and whether the
defendant resides out of state or
does not have access to transporta-
tion. The judge shall set out the
finding of good cause in the judg-
ment. If a defendant is required, as
a condition of community supervi-
sion, to attend an educational pro-
gram, the court clerk shall imme-
diately report that fact to the
Department of Public Safety, on a
form prescribed by the depart-
ment, for inclusion in the defen-
dant's driving record. The report
must include the beginning date of
the defendant's community super-
vision. On the successful comple-
tion of the educational program
for repeat offenders the defendant
shall give notice to the community
supervIsIOn and corrections
department. The community
supervision and corrections
department shall then forward the
notice to the court clerk. The court
clerk shall then report the date of
successful completion of the edu-
cational program to the
Department of Public Safety for
inclusion in the defendant's dri-
ving record. If the Department of
Pu bl ic Safety does not recei ve
notice that a defendant required to
complete an educational program
has successfully completed the
program for repeat offenders with-
in the period required by this sec-
tion, as shown on department
records, the department shall con-
tinue the suspension of the defen-
dant's driver's license, permit, or
privilege or prohibit the defendant
from obtaining a license or permit,
as provided by Section 24(q)(2),
Chapter 173, Acts of the 47th
Legislature, Regular Session, 1941
(Article 6687b, Vernon's Texas
Civil Statutes).
(k) Notwithstanding Section
24(9), Chapter 173, Acts of the
47th Legislature, Regular Session,
1941 (Article 6687b, Vernon ' s
Texas Civil Statutes), if the judge,
under Subsection (h) or U) of this
section, permits or requires a
defendant punished under Section
49.09, Penal Code, to attend an
educational program as a condi-
tion of community supervision,
and the defendant has previously
been required to attend such a pro-
gram, the judge nonetheless shall
automatically suspend the driver' s
license, permit, or operating privi-
lege of that person for a period
determined by the judge according
to the following schedule:
1. not less than 90 days or more
than 365 days, if the defen-
dant is convicted under
Sections 49.04-49.08; or
2. not less than 180 days or
more than two years , if the
defendant is punished under
Section 49.09.
(l) If the Department of Public
Safety receives notice that a
defendant has been required or
permitted to attend an educational
program under Subsection (h) of
this section, but the judge has not
ordered a period of suspension,
the department shall suspend the
defendant's driver's license, per-
mit, or operating privilege, or shall
issue an order prohibiting the
defendant from obtaining a license
or permit for a period of 365 days.
Sec. 14. SUBSTANCE
ABUSE FELONY PROGRAM.
MAY/JUNE 1994
DOCKET CALL 7
(a) If a court places a defendant
on community supervision under
any provision of this article as an
alternative to imprisonment, the
judge may require as a condition
of community supervision that the
defendant serve a term of confine-
ment and treatment in a substance
abuse justice under Section 493.
009, Government Code. A term of
confinement and treatment
imposed under this section must
be an indeterminate term of not
more than one year or less than six
months.
(b) A judge may impose the
condition of community supervi-
sion created under this section if:
l. the judge places the defen-
dant on community supervision
under this article;
2. the defendant is charged with
or convicted of a felony other
than a felony under Section
21.11,22.011,22.021, or 25.06,
Penal Code; and
3. the judge makes an affirma-
tive finding that:
(A) drug or alcohol abuse
significantly contributed to
the commission of the crime
or violation of community
supervision; and
(B) the defendant is a suit-
able candidate for treatment,
as determined by the suit-
ability criteria established by
the Texas Board of Criminal
Justice under Section 493.-
009(b), Government Code.
(c) The judge requires as a con-
dition of community supervision
that the defendant serve a term of
confinement and treatment in a
substance abuse treatment facility
under this section, the judge shall
also require as a condition of com-
munity supervision that on release
from the facility the defendant
participate in a drug or alcohol
abuse continuum of care treatment
plan.
(d) The Texas Commission on
Alcohol and Drug Abuse shall
develop the continuum of care
treatment plan.
Sec. 15. PROCEDURES
RELATING TO STATE JAIL
FELONY COMMUNITY
SUPERVISION.
(a) On conviction of a state jail
felony, the judge shall suspend the
imposition of the sentence of con-
finement and place the defendant
on community supervision. The
judge may suspend in whole or in
part the imposition of any fine
imposed on conviction.
(b) The minimum period of
community supervision a judge
may impose under this section is
two years. The maximum period
of community supervision a judge
may impose under this section is
five years. A judge may extend a
period of community supervision
under this section at any time dur-
ing the period of community
supervision, or if a motion for
revocation of community supervi-
sion is filed before the period of
community supervision ends,
before the first anniversary of the
expiration of the period of com-
munity supervision.
(c) A judge may impose any
condition of community supervi-
sion on a defendant that the judge
could impose on a defendant
placed on supervision for an
offense other than a state jail
felony, except that the judge may
impose on the defendant condition
that the defendant submi t to a
period of confinement in a county
jail under Section 12 of this article
only if the term does not exceed
30 days, or does not exceed 60
days if the defendant previously
has been convicted of a felony.
(d) A judge may impose as a
condition of community supervi-
sion that a defendant submit at the
beginning of the period of com-
munity supervision to a term of
confinement in a state jail felony
facility for a term not to exceed 60
days, or 180 days if the defendant
previously has been convicted of a
felony, or one year if the defen-
dant is convicted of an offense
punishable as a state jail felony
under Section 481.112, Health and
Safety Code, or the defendant pre-
viously has been convicted of two
or more felonies. A judge may not
require a defendant to submit to
both the term of confinement
authorized by this subsection and
a term of confinement under
Section 12 of this article. For the
purposes of this subsection, a
defendant previously has been
convicted of a felony regardless of
whether the sentence for the previ-
ous conviction was actually
imposed or was probated and sus-
pended.
(e) If a defendant violates a
condition of community supervi-
sion imposed on the defendant
under this article and after a hear-
ing under Section 21 of this article
the judge modifies the defendant's
community supervision, the judge
may impose any sanction permit-
ted by Section 22 of this article,
except that the judge may not
require a defendant to serve a peri-
od of confinement in a state jail
felony facility as a modification of
the defendant's community super-
vision.
8 DOCKET CALL
MAY/JUNE 1994
(f) If a defendant violates a con-
dition of community supervision
imposed on the defendant under
this article and after a hearing
under Section 21 of this article the
judge revokes the defendant's
community supervision, the judge
shall dispose of the case in the
manner provided by Section 23 of
this article. The court retains juris-
diction over the defendant until
the first anniversary of the date the
defendant is received into the cus-
tody of a state jail. At any time
after the 75th day after the date the
defendant is received into the cus-
tody of a state jail and before the
first anniversary of the date the
defendant is received into the cus-
tody of a state jail, the judge on
the judge's own motion, on the
motion of the attorney represent-
ing the state, or on the motion of
the defendant may suspend further
execution of the sentence and
place the defendant on community
supervision under the conditions
of this section.
(g) The facility director of a
state jail felony facility shall
report to a judge who orders a
defendant confined in the facility
not less than every 90 days on the
defendant's programmatic
progress, conduct, and conformity
to the rules of the facility.
(h) (1) A defendant confined in
a state jail felony facility after
revocation of community supervi-
sion does not earn good conduct
time for time served in the facility.
2) A judge may credit against
any time a defendant is sub-
sequently required to serve
in a state jail felony facility
after revocation of communi-
ty supervision time served by
the defendant in county jail:
(A) from the time of the
defendant ' s arrest and
confinement until sen-
tencing by the trial court;
(B) as a condition of commu-
nity supervision under
Subsection (d) of this sec-
tion; and
(C)after modification of
community supervision.
3) A judge shall credit against
any time a defendant is sub-
sequently required to serve in a
state jail felony facility after revo-
cation of community supervision
any time served by the defendant
in a state jail felony facility after
sentencing.
Sec. 16 COMMUNITY SER-
VICE.
(a) A judge shall require, as a
condition of community supervi-
sion, that the defendant work a
specified number of hours at a
community service project or pro-
jects for an organization or organi-
zations approved by the judge and
designated by the department,
unless the judge determines and
notes on the order placing the
defendant on community supervi-
sion that:
1. the defendant is physically or
mentally incapable of partic-
ipating in the project;
2. participating in the project
will work a hardship on the
defendant or the defendant's
dependents;
3. the defendant is to be con-
fined in a substance abuse
punishment facility as a con-
dition of community supervi-
sion;
4. there is other good cause
shown.
(b) The amount of community
service work ordered by the judge.
1. may not exceed 1,000 hours
and may not be less than 320
hours for an offense classi-
fied as a first degree felony;
2. may not exceed 800 hours
and may not be less than 240
hours for an offense classi-
fied as a second degree
felony;
3. may not exceed 600 hours
and may not be less than 160
hours for an offense classi-
fied as a third degree felony;
4. may not exceed 400 hours
and may not be less than 120
hours for an offense classi-
fied as a state jail felony;
5. may not exceed 200 hours
and may not be less than 80
hours for an offense classi-
fied as a Class A misde-
meanor or for any other mis-
demeanor for which the
maximum permissible con-
finement, if any, exceeds six
months or the maximum per-
missible fine, if any, exceeds
$4,000; and
6. may not exceed 100 hours
and may not be less than 24
hours for an offense classi-
fied as a Class B misde-
meanor or for any other mis-
demeanor for which the
maximum permissible con-
finement, if any, does not
exceed six months and the
maximum permissible fine,
if any does not exceed
$4,000.
(c) If the judge modifies the
defendant's terms of community
supervision to include confine-
ment in a state jail felony facility,
the judge shall order the defendant
to continue to work towards ful-
fillment of his work requirement
MAY/JUNE 1994 DOCKET CALL 9
during his period of confinement.
(d) A defendant required to per-
form community service under
this section is not a state employee
for the purposes of Article 8309g
or 8309h, Revised Statutes.
Sec. 17. CHANGE OF RESI-
DENCE; LEAVING THE
STATE.
(a) If, for good and sufficient
reasons, a defendant desires to
change his residence within the
state, the change may be effected
by application to the supervising
supervision officer, which change
shall be subject to the judge's con-
sent and subject to such regula-
tions as the judge may require in
the absence of an officer in the
locality to which the defendant is
transferred.
(b) Any defendant who removes
himself from the state without per-
mission of the judge having juris-
diction of the case shall be consid-
ered a fugitive from justice and
shall be subject to extradition as
provided by law.
Sec. 18. COMMUNITY
CORRECTIONS FACILITIES.
(a) In this section, "community
con·ections facility" means a facil-
ity described by Subsection (b)(2)
of Section 1, Article 42.13, of this
code.
(b) If a judge requires as a con-
dition of community supervision
that the defendant serve a term in
a community corrections facility,
the term may not be more than 24
months.
(c) A defendant granted com-
munity supervision under this sec-
tion may not earn good conduct
credit for time spent in a commu-
nity corrections facility or apply
time spent in the facility toward
completion of a prison sentence if
the community supervision is
revoked.
(d) As directed by the judge, the
corrections facility director shall
file with the community supervi-
sion and corrections department
director a copy of an evaluation
made by the director of the defen-
dant's behavior and attitude at the
facility. The director shall examine
the evaluation, make written com-
ments on the evaluation that he
considers relevant, and file the
evaluation and comments with the
judge who granted community
supervision to the defendant. If the
evaluation indicates that the
defendant has made significant
progress toward compliance with
court-ordered conditions of com-
munity supervision, the court may
release the defendant from the
community corrections facility.
The defendant shall serve the
remainder of his community
supervision under any terms and
conditions the court imposes
under this article.
(e) No later than 18 months
after the date on which a defen-
dant is granted community super-
vision under this section, the com-
munity corrections facility director
shall file with the community
supervision and corrections
department director a copy of an
evaluation made by the director of
the defendant's behavior and atti-
tude at the center. The director
shall examine the evaluation,
make written comments on the
evaluation that he considers rele-
vant, and file the evaluation and
comments with the judge who
granted community supervision to
the defendant. If the report indi-
cates that the defendant has made
significant progress toward court-
ordered conditions of community
supervision, the court shall modify
its sentence and release the defen-
dant in the same manner as pro-
vided by Subsection (e) of this
section. If the report indicates that
the defendant would benefit from
continued participation in the
community corrections facility
program, the court may order the
defendant to remain at the com-
munity corrections facility for a
period determined by the court. If
the report indicates that the defen-
dant has not made significant
progress toward rehabilitation, the
court may revoke community
supervision and order the defen-
dant to the term of confinement
specified in the defendant ' s sen-
tence.
(f) If ordered by the judge who
placed the defendant on communi-
ty supervision, a community cor-
rections facility director shall
attempt to place a defendant as a
worker in a community-service
project of a type descri bed by
Section 16 of this article.
(g) A defendant participating in
a program under this article shall
be confined in the community cor-
rections facility at all times except
for:
1. time spent attending and
traveling to and from an edu-
cation or rehabilitation pro-
gram as ordered by the court;
2. time spent attending and
traveling to and from a com-
munity-service project;
3. time spent away from the
facility for purposes
described by this section;
and
4. time spent traveling to and
IO DOCKET CALL
MAY/JUNE 1994
from work, if applicable.
(h) A judge who requires as a
condition of community supervi-
sion that the defendant serve a
term in a community corrections
facility may not impose a subse-
quent term in a community correc-
tions facility or jail during the
same supervision period that,
when added to the terms previous-
ly imposed, exceeds 24 months.
(i) If a defendant participating
in a program under this section is
not required by the judge to deliv-
er the defendant's salary to the
restitution center director, the
employer of the defendant shall
deliver the salary to the director.
The director shall deposit the
salary into a fund to be given to
the defendant on release after
deducting:
1. the cost to the center for the
defendant's food, housing,
and supervision;
2. necessary travel expense to
and from work and commu-
nity-service projects and
other incidental expenses of
the defendant;
3. support of the defendant's
dependents; and
4. restitution to the victims of
an offense committed by the
defendant.
Sec. 19. FEES.
(a) Except as otherwise provid-
ed by this subsection, a judge
granting community supervision
shall fix a fee of not less than $25
and not more than $40 per month
to be paid to the court by the
defendant during the community
supervision period. The judge may
make payment of the fee a condi-
tion of granting or continuing the
community supervision. The judge
may waive or reduce the fee or
suspend a monthly payment of the
fee if the judge determines that
payment of the fee would cause
the defendant a significant finan-
cial hardship.
(b) The judge shall deposit the
fees received under Subsection (a)
of this section in the special fund
of the county treasury, to be used
for the same purposes for which
state aid may be used under
Article 42.131 of this code.
(c) A judge receiving a defen-
dant for supervision as authorized
by Article 42.11 of this code may
impose on the defendant any telm
of community supervision autho-
rized by this article and may
require the defendant to pay the
fee authorized by Subsection (a)
of this section. Fees received
under this section shall be deposit-
ed in the same manner as required
by Subsection (b) of this section.
(d) For the purpose of deter-
mining when fees due on convic-
tion are to be paid to any officer or
officers, the placing of the defen-
dant on community supervision
shall be considered a final disposi-
tion of the case, without the neces-
sity of waiting for the termination
of the period of community super-
vision.
Sec. 20. REDUCTION OR
TERMINATION OF COMMU-
NITY SUPERVISION.
(a) At any time, after the defen-
dant has satisfactorily completed
one-third of the original communi-
ty supervision period or two years
of community supervision,
whichever is less, the period of
community supervision may be
reduced or terminated by the
judge. Upon the satisfactory ful-
fillment of the conditions of com-
munity supervision, and the expi-
ration of the period of community
supervision, the judge, by order
duly entered, shall amend or mod-
ify the original sentence imposed,
if necessary, to conform to the
community supervision period and
shall discharge the defendant. If
the judge discharges the defendant
under this section, the judge may
set aside the verdict or permit the
defendant to withdraw his plea,
and shall dismiss the accusation,
complaint, information or indict-
ment against the defendant, who
shall thereafter be released from
all penalties and disabilities result-
ing from the offense or crime of
which he has been convicted or to
which he has pleaded guilty,
except that:
1. proof of the conviction or
plea of guilty shall be made
known to the judge should
the defendant again be con-
victed of any criminal
offense; and
2. if the defendant is an appli-
cant for a license or is a
licensee under Chapter 42,
Human Resources Code, the
Texas Department of Human
Services may consider the
fact that the defendant previ-
ously has received communi-
ty supervision under this arti-
cle in issuing, renewing,
denying, or revoking a
license under that chapter.
(b) This section does not apply
to a defendant convicted of an
offense under Sections 49.-
04-49.08, Penal Code, or a defen-
dant convicted of an offense pun-
ishable as a state jail felony.
MAY/JUNE 1994
DOCKET CALL II
To Tell The Truth
Well the cat's out of the bag
now. Lonny Morrison finally said
it in his swan song editorial in the
State Bar Journal so I guess it's
all right to talk about it. It has
been painfully apparent to anyone
with the normal number of limbs
and senses for some time now.
There's too many goddamn
lawyers. There, I said it. There's
too many goddamn lawyers. Tom
Paxton wrote it in a song ten
years ago,
"In ten years we're gonna
have one million lawyers, one
million lawyers, one million
lawyers.
"In ten years we're gonna
have one million lawyers, how
much can the poor nation stand?"1
I used to think he was kidding.
I used to think it was funny.
There is no taking criminal
defense out of the larger universe
of lawyers and their problems .
The discrepancy between supply
and demand is one of those prob-
lems. If not the biggest problem
facing the profession, it is certain-
ly the root cause of numerous
problems the bar faces. From the
by Louis F. Linden
paucity of writings on this topic
in the bar journals and papers it
appears that it has been defacto
taboo to discuss this in public
forums. Certainly there are good
reasons for not wanting to write
or speak about it. It ' s a swamp.
It's a miasma. It's a land war in
southeast Asia. If you point out
the problem someone will proba-
bly be cheeky enough to ask for a
solution. For years our leaders
kept mum hoping the economic
tide would rise enough to float all
the new as well as old boats in the
bar. It hasn't happened. Instead
we have a seemingly eternal
spring low tide and fewer and
fewer boats are floating at all.
Many are aground on their side
and the exposed sea weed, barna-
cles and dead fish are beginning
to stink. Of those that are float-
ing, many are in landlocked pools
with no prospect of sailing any-
where.
So how did we come to this
sorry pass? It is the intersection
of two powerful trends. One has
to do with law schools and soci-
ety. In spite of the fact that
lawyers are usually ranked by the
public somewhere below used car
salesmen and people who stomp
on tiny, baby chicks for fun,
becoming a lawyer is still one of
the most popular vehicles of
upward social mobility. Existing
law schools have grown and new
ones have sprung up because they
are tremendous money makers!
They require no expensive labora-
tories or exotic equipment. A few
books and some classrooms and
bingo! you're in business. Eager
attorney wannabes will stand in
line to get in until they become an
integral part of the landscape. As
far as the educational world is
concerned, law schools are sec-
ond only to having an extra key to
the U.S. Mint. They churn new
bar fodder ou t at a prodigious
rate. According to the State Bar
there are presently 58,193 lawyers
in Texas. When I became a mem-
ber of the bar in 1976 there were
32, 330. There are presently
15,681 lawyers in Harris County
alone, up from the 1976 figure of
7,217. Since 1976 the ratio of
lawyers to popUlation in Texas
has gone from 1 lawyer for every
393 persons to 1 lawyer for every
303 persons. The increase is even
more dramatic for Harris County.
In 1976 the ratio was one lawyer
for every 288 persons; in 1994 the
number is one lawyer for every
188 persons. Put another way, the
population of Harris County has
increased about forty-one percent
since 1976 while the number of
lawyers has more than doubled at
one hundred and seventeen per-
cent. The number of lawyers has
grown at a rate nearly three times
that of the popUlation at large.
The Bar is metastasizing.
The other major factor is the
changing economy. During the
salad days of the oil boom there
was enough economic activity to
absorb the ever increasing num-
ber of attorneys . When I first
came to Houston in 1980 the City
12 DOCKET CALL
MAY/JUNE 1994
was peppered with signs adver-
tising, "Business Cards in Four
Hours!" Then oil prices went in
the dumper and the economy of
Houston contracted like a black
hole near to the point of collapse.
Many of those lawyers got
dumped out of their law firms and
into the street. The layoffs have
continued since then. When I was
John Ackerman's campaign man-
ager in 1992 we used a number of
lawyer lists for fund raising.
Many were from the last two pre-
vious elections. As we went
"Criminal
litigation is
much more
complex and
to a large
extent open
ended."
complex and to a large extent
open ended. There are lawyers
advertising that they take felonies
for $350.00 a pop. Can anyone
do more than plead guilty in short
order for $350.00?
Another aspect concerns the
more than 75 percent of all crimi-
nal defendants in Harris County
who are represented by appointed
counsel. The County government
completely controls this portion
of the market. With the incredible
oversupply of lawyers, they can
set virtually any fee structure they
want; there will always be enough
hungry mullets to take whatever
comes their way at whatever fee.
They proved it when they reduced
fees for appointed cases the last
time. The lines of under
employed lawyers didn't shrink.
If anything they grew. Where
else does one take a twenty per-
cent pay cut and even more peo-
ple sign up to go to work? There
is a pervasive fear that they will
do it again. Rumors to that effect
are rife throughout the Court-
house grapevine. I don't think
we'll see it this year simply
because of the budget cycle. But
theoretically, with enough under
employed and unemployed
lawyers, they could cut the rate ad
infinitum.
So there, that's the easy part.
Now, what are we going to do
about it? The simplest answer is
to limit the number of new
lawyers. But even that is not sim-
ple. What criteria do we use?
Forget going back to the white,
male good 01' boys club that the
bar used to be. It was a dumb
idea then and it's a dumb idea
now. Do we try to predict who
will be a good lawyer? Through-
about the task of updating the lists
a very obvious trend became
apparent. There were dozens of
lawyers whose address had been
something like Joe Blow Attorney
at Law, Dewey, Cheatem and
Howe, 35th Floor, Texas
Capitalist Bank Building,
Houston, TX 77002. Their new
addresses were all things like Joe
Blow Attorney at Law 12345
Outintheburbs Lane Suburbia,
Texas 77540. They had been
dumped out into the street by the
law finns and commercial institu-
tions they worked for and are now
practicing out of their back bed-
rooms.
The same economic con-
traction has diminished the poten-
tial paying client base. Real in-
come in the United States has
been declining steadily for twenty
years. Fewer people than ever
before can afford to hire an attor-
ney. We have an ever increasing
work force competing for an ever
diminishing client base. The
effect of these two factors,
increased supply and shrinking
demand, is to drive down prices
just like Adam Smith and Harry
Blackmun said it would.
In the theoretical perfect mar-
ket that would be good for con-
sumers. The problem is that
prices have been driven below the
level at which effective assistance
of counsel can be provided and
below the level at which a lawyer
can make a living. In the theo-
retical perfect market the services
would then become scarce and
prices would rise. The conceptual
flaw in the ointment is that this
isn't a free market. The con-
sumers do not have the option of
simply forgoing legal represent-
ation. How many times have we
heard the words, "Hire a lawyer
or go back to jail. " If they are
unable to pay a fee that will sup-
port effective assistance of coun-
sel, they will pay a lower fee for
ineffective assistance of counsel.
This not only debases and
demeans the profession, it debas-
es and demeans the criminal jus-
tice system. There is no incentive
to improve performance. We are
not selling routine legal services.
The market may work for simple
wills and uncontested divorces.
Criminal litigation is much more
MAY/JUNE 1994 DOCKET CALL 13
because I love my country and I
fear my government. I wanted to
be at the interface between the
state and the individual. I had to
take the LSAT twice and there are
still some faculty members at the
University of Texas School of
Law who swear I was admitted by
mistake. Need I say my law
school grades were adequate at
best? I didn't even bother to
interview for jobs (I hate the
sound of snickering). I went to
law school because I wanted to
kick the state' s butt. I don't think
and Jug Band Stompers. In that
capacity he once met Pete Seeger
who told him, "Just remember,
music is much too important to
leave to professionals. " As a
result, he became a labor organiz-
er because they had all the good
songs.
1. "One Million Lawyers and other
Disasters" <D 1985 Flying Fish
Records
"The
definition
ofagood
lawyer, like
truth,
beauty,
and con-
tact lenses
is largely
in the eye
ofthe
beholder. "
out much of history the ability to
keep rich people rich was the for-
emost criteria. It's a natural con-
comitant of our materialistic soci-
ety. Vinson-Elkins doesn't hire
lawyers because they are empa-
thetic or socially concerned or
dedicated to justice or the Bill of
Rights. They hire lawyers to pro-
tect their clients' money. The def-
inition of a good lawyer, like
truth, beauty, and contact lenses is
largely in the eye of the beholder.
I don't think I want Vinson-Elkins
(or Baker-Botts or Butler-Binion)
deciding who gets to become a
lawyer. I became a lawyer
Vinson-Elkins would approve.
I don't think that there is a
workable solution for the criminal
defense bar until there is a solu-
tion for the bar in general. Even
idealistic lawyers willing to
forego the fat cat civil lawyer
salaries to have a chance to take a
bite outta the State's butt can't
make it on what's out there now.
We simply can't make use of one
lawyer for every 188 men women
and children in Harris County.
These are unpleasant times and
we are faced with unpleasant
decisions. Even if we cut law
school enrollments 25 % across
the board (imagine the antitrust
implications of that one!!) we
couldn't expect relief before the
turn of the century. But at least
we can talk about it now. Even if
we are frozen in inaction like a
deer paralyzed in the headlights
of an onrushing truck.
Lou Linden practices criminal
defense exclusively in Houston
("The Whore with a Heart of
Oil"), Texas. He is formerly the
leader of the Francis Anne Wood
Shimer Memorial Cat Ki ckers
Federal
Practice
Seminar
Materials
Available
for $25
Call 227-2404
Fifth
Annual
Banquet
Thursday,
June 30, 1994
The Houstonian
$25 per person
RSVP to 227-2404
14 DOCKET CALL
MAY/JUNE 1994
Illegal
Expenditure or
Investment
Statute
by Juan Martinez Gonzales
Beeville, Texas
The new offense of "Illegal
Investment" was originally created
in 1981 by the Legislature on the
war against drugs The offense is
now called "Illegal Expenditure or
Investment". The statute was com-
pletely amended by the legislature
last year. The effective date of the
new "Illegal Expenditure or
Investment" statute is September 1,
1994.
The new amended statute, sub-
section (1) provides that a person
commits an offense, if the person
knowingly or intentionally:
expends funds the person knows
are derived from the commission of
an offense listed in Section
48l.115(a) which includes posses-
sion of a controlled substance listed
in Penalty Group 1; or expends
funds the person knows are deri ved
from the commission of an offense
listed in Section 481. 116(a) which
includes possession of a controlled
substance listed in Penalty Group
2; or expends funds the person
knows are derived from the com-
mission of an offense punishable
under Section 481.1l2(d) manufac-
ture, grams or more, but less than
200 grams; Section 481.112(e)
manufacture, deli very or posses-
sion of controlled substance which
is 200 grams or more, but less than
400 grams; Section 48l.113(d)
manufacture or delivery of con-
trolled substance in Penalty Group
2 where controlled substance is
four grams or more but less than
400 grams; Section 48l.1l4(c)
manufacture or deli very of con-
trolled substance in Penalty Group
3 where controlled substance is 28
grams or more but less than 200
grams; Section 48l. 117(c) pos-
session of controlled substance in
Penalty Group 3 where controlled
substance is 28 grams or more but
less than 200 grams; Section
481.118(c) possession of a con-
trolled substance in Penalty Group
4 where controlled substance is 28
grams or more but less than 200
grams; Section 48l.120(b)(5)
delivery of marihuana where
amount of marihuana delivered is
2000 pounds or less but more than
fifty pounds; Section 481.120(b )(6)
delivery of marihuana where
amount of marihuana delivered is
more than 2000 pounds; Section
48l.121(b)(5) possession of mari-
huana where amount of marihuana
possessed is 2000 pounds or less
but more than 50 pounds; Section
481.121(b)(6) possession of mari-
huana where amount of marihuana
possessed is more than 2000
pounds.
A person also commits an
offense under this statute, subsec-
tion 2, when he knowingly or
intentionally finances or invests
funds the person knows or believes
are intended to further the commis-
sion of an offense listed in subsec-
tion(lO) or an offense for which the
punishment is listed under section
(1). The new statute specifically
states than an offense under it is a
first degree felony.
Both the present and future
"Illegal Expenditure or
Investment" statute contain the
same words: "funds", "finances",
"invests", and "believes". The
statute has been attacked as being
unconstitutionally vague, since the
words "funds", "finances",
"invests" and "believes" are not
defined. Several Texas appellate
courts have upheld the statute when
these arguments have been made.
Other constitutional attacks to
the vagueness of the statute on
other grounds have been rejected
by the appellate courts.
The Court of Criminal Appeals
DOCKET CALL 15
MAY/JUNE 1994
• •
has held that the term "finances"
within meaning of statute means to
raise or provide funds or capital for
or to furnish with necessary funds
for purposes of gaining possession
of controlled substances The Court
of Criminal Appeals has also held
that the term "invests" means with-
in meaning of the statute to commit
money in order to earn a financial
return.
Appellate courts have held that
the term "funds" within meaning of
statute means "money or "cash", or
"an asset or groups of assets set
aside for a specific purpose."
An appellate court has held that
the term "believes" within meaning
of statute means "to think or sup-
pose; to entertain as likely or prob-
able true."
The Illegal Expendi ture or
Investment statute has a mens rea
element that is required to be
proved. It requires that the person
knowingly or intentionally invested
funds, which he knew or he
believed were intended to further
the commission of a felony con-
trolled substance offense.
The Court of Appeals in Cox v.
State, held that the evidence was
insufficient to prove beyond a rea-
sonable doubt that the defendant in
individual or personal capacity,
intentionally or knowingly
financed and invested funds that he
knew and believed were intended
to further the commission of pos-
session of useable quantity of mari-
huana and defendant could not be
convicted on the basis of his own
conduct.
In Cox, the defendant's conduct
consisted of driving an automobile
containing two co-defendants and
then entering a restaurant with the
two men. Moments later the co-
defendants left the restaurant and
took automobile to a motel about a
"The Illegal
Expenditure
or Investment
statute has a
mens rea ele-
ment that is
required to be
proved. It
requires that
the person
knowingly or
intentio nally
invested
funds, which
he knew or he
believed were
intended to
further the
commlsslon
ofafelony
controlled
substance
offense."
where drug deal took place and the
two co-defendants got busted. The
actions of defendant Cox was that
he sat alone at a table inside the
restaurant and appeared to be look-
ing in the direction of the motel.
The appellate court in Cox held
that the actions of the defendant
Cox as a party were not properly
before the jury, because the judge
had given the jury an abstract
instruction on the law of parties.
The appellate court ruled that the
application paragraph in the charge
failed in any form to apply the
applicable portions of the abstract
definition to the specific facts of
the case. Therefore, the jury was
only authorized to convict appel-
lant on his own conduct alone. In
Cox the court ruled that the evi-
dence was insufficient.
Convictions under the Illegal
Expenditure or Investment Statute
have been upheld where the defen-
dant has negotiated a drug deal, the
defendant has purchased chemicals
to make the illegal drug, the defen-
dant was with someone else who
supplied the cash for the drug deal,
where defendant has money readily
available and showed money to do
a drug deal, and where the defen-
dant made a complete transfer of
money for the drugs.
No actual transfer of funds is
required for completion of offense
under the Illegal Expenditure or
Investment Statute. The accused
completes crime when he supplies
money or commits funds with
intent to further possession or
delivery of controlled substance.
In Jordan, Biggins, Jr. and
Richardson v. State, the Court of
Criminal Appeals reversed the
decision of the Dallas Court of
Appeals which held that an actual
transfer of funds was needed before
someone could be convicted of ille-
hundred yards from the restaurant gal investment. The Court of
16 DOCKET CALL
MAY/JUNE 1994
Criminal Appeals held that the Dal-
las Court of Appeals decision was
in conflict with three other court of
appeals decision.
Judge McCormick stated in his
decision that neither the statute nor
the indictment which tracks the
statute speak in terms of transfer-
ring funds. The offense requires
that there be an intent to "finance"
or "invest'. He stated that although
the funds in this case had not
changed hands, the money had
been "raised" and "committed" by
agreement for the purpose of gain-
ing possession of cocaine.
Even if another individual sup-
plies money for the transaction, a
defendant can be equally responsi-
ble for the commission of the
offense under the law of parties.
A person can also be convicted
of attempted illegal investment. If
the indictment alleges that a defen-
dant "negotiated" a drug transac-
tion or "displayed money", the
state is bound to prove those ele-
ments.
Evidence in possession for ille-
gal investment was sufficient to
support finding that defendant used
or exhibited a deadly weapon dur-
ing the commission of our flight
from the offense, although defen-
dant did not have pistol with him at
the time he handed over the money
to buy drugs, where pistol was in
the car in which he waited for cul-
mination of the drug transaction;
time spent waiting in the car was
part of defendant's involvement in
the commission of the offense.
In an illegal investment prose-
cution it is inadmissible for the
State to use unadjudicated extrane-
ous offenses at the punishment
phase of the trial.
The appellate courts have
rejected the defense of entrapment
and outrageous conduct when
raised on appeal to the offense of
Illegal Expenditure or Investment.
TEX.CODE CRIM. PRO-
CED.ANN., Art. 44.04(b) makes
clear that the Legislature intended
to deny bail to convicted felons
whose punishment exceeds fifteen
years confinement or where the
defendant has been convicted of an
offense which is listed under
TEX.HEALTH & SAFETY
CODE, Section 481. 107(b)
through (e), which includes the
offense of illegal investment.
(Section 481.126(b).
It has been my experience that
these illegal investment cases are
extremely hard to defend. As
defense lawyers we should caution
the jury panel on the inherent dan-
gers of guilt by association, where
more than one person is charged
with the same offense. The jury
panel should also be made aware
that "mere presence" at the scene
of the offense or close proximity to
the place of the offense does not
make one a party to the offense of
illegal investment.
A jury instruction should be
filed in behalf of the defendant that
"mere presence does not make one
a party to the offense." It is possi-
ble that an innocent person may be
caught in a web of events or sce-
nario that place him at the scene of
a drug transaction.
Be creative. Request a jury
instruction that "the conduct of law
enforcement agents must not fall
below reasonable standards of
proper use of law enforcement.
If your client is not an innocent
bystander try to create a fact issue
on entrapment or government over-
reaching. Once a fact issue is creat-
ed you are entitled to an instruction
on your defense or fact issue.
The Texas Court of Criminal
Appeals has not ruled whether a
defendant has a right to a jury
instruction on government over-
reaching (outrageous governmental
conduct) or a right to a defense of
outrageous governmental conduct,
but there is authority from federal
cases, law reviews and treatises
that a defendant is entitled to a
government overreaching charge.
You have a better chance with a
jury on the issues of entrapment
and government overreaching than
you do from an appellate court. So
you have nothing to lose by sub-
mitting requested jury instructions
on entrapment and/or government
overreaching, in your illegal expen-
diture or investment cases.
1. HOUSE BILL NO. 268, Acts of
1981, 67th Leg., p. 703, ch.
268, 8 adding at 4.052 to the
Controlled Substances Act;
TEX. REV.CIV.STAT.ANN.,
Art. 4476-15 4.052.
2. Wendorf, The War on Crime:
1981 Legislation, 33 BAY. L.-
REY. 765, 783 (1981).
3. TEX.HEALTH & SAFETY
CODE ANN. 481.126
(Vernon's Supp. 1993).
4. SENATE BILL NO. 1067, Acts
of 1993, 73rd leg., p. 3713,ch
900 2.02
5. Ex parte Guerrero, 811 S.W.2d
726, 728 (Tex.App.-Corpus
Christi 1991); Stevens v. State,
817 S.W.2d 800, 804
(Tex.App.-Forth Worth 1991,
pet. ref'd); Martinez v. State,
852 SW2d
DOCKET CALL [7
MAY/JUNE 1994
A Fair Trial
At Last?
Theus,and
The
Criminal
Defendant
with
P r ~ o r s
by De Edward Greer
Before exuding too much due-
process-oriented glee, we should
acknowledge that Theus is in
"heavenly appellate orbit," and
seems on the verge of setting
crimes and misdemeanors" sud-
denly found that many of his
taken-for-granted human charac-
teristics simply evaporated, one
being that he was now "incompe-
tent" to testify in court. Much
later, in the United States, a crimi-
nal was more or less "competent,"
but the right to testify was consid-
ered "forfeited," part of the pun-
ishment for the crime.
Fast-forwarding a bit, the
unfortunate crux of old Art.
38.29-evolved from the above.
That is that you could attack the
person of a criminal defendant, by
showing he'd been convicted of a
crime. The standard instruction
was that you couldn't consider
this prior conviction as evidence
of guilt, but it was quite permissi-
ble to allow it to affect the weight
you would give his testimony. In
other words, the prior conviction
impugned his character, made him
a "bad guy," and a juror didn't
have to "pay him any mind", if
he didn't want to.
In other words-and there are
doubtless some prosecutors and
judges who will deny this, and
some appellate judges who don't
even begin to understand it-if
the DA could legally label this
accused citizen an "ex-con," it
was essentially "your choice," if
you were a juror, whether you
would give his (or her) story any
consideration whatever, without
regard to factual believability.
We truly spoke with forked
tongue: Out of one side of the
mouth we said you are entitled to
be tried on this charge onl y, not
as a criminal generally, but out of
the other side, as was so fittingly
argued by the real-life DA in the
real-life trial of this accused ci ti-
zen named Theus, "You just ask
yourself: Who do I believe-
Officer Bledsoe, or this.. . this con·
victed arsonist, this ... this one-
time ex·con!!!" etc., etc., etc.
In other words-and this is so
simple, so elementary, that per-
haps it will yet shine through its
seemingly blackened and slander-
ous-appearing facade-a criminal
defendant, who took the stand, in
Texas, with a prior felony convic-
tion, rarely, if ever, got a truly fair
trial.
Let's now consider some nuts
and bolts aspects of this enor-
mously promising holding.
Theus Facts, and the Essence of
its Holding
In the original Theus trial, the
Appellant had filed a pre-trial
motion to exclude the arson prior
on the grounds that it had little
probative value as to credibility,
and great potential for prejudice.
It was a very "weak" felony, i.e.,
small fire, no damage, no restitu-
tion, no fine, Appellant was given
three years probation which was
later revoked on technicals only.
But if it was admitted, the jury
would be left to conjure up all
kinds of prejudicial "facts," i.e.,
people burned alive, millions of
dollars of insurance fraud dam-
age, etc.
Back in 1987, shortly after
Rule 609(a) went into effect,
Cathleen Herasimchuck wrote in
the Houston Law Review that the
new rule represented "a major
change in Texas evidentiary law."
But despite the indisputable accu-
racy of this former prosecutor's
assessment, it seems no one
believed her, and if an attorney
began to boldly argue about the
rule ' s "balancing test ," judges
would often react more or less as
if the lawyer were phonetically
some sort of record. There i
Theus 1,_816 S.W.2d 773, Theus
II, §45 S.W.2d 874, Theus III, 858
S.W.2d 25, Theus IV, 863 S.W.2d
489,=and Theus V, not yet report-
ed. Further, I sincerely hope ther
ill be a Theus VI, because with-
out it we may regress to the
square-one dark ages of old Art.
38.29, Code of Criminal
Procedure . Explanation is in
order. First, let's consider:
A Brief History Of Impeach-
ment With Prior Convictions
The evolution of this practice
is a fascinating area of the law.
Space being at a premium a short
outline will have to suffice.
Under the old English common
law, one convicted of "high
18 DOCKET CALL
MAY/JUNE 1994
reciting in tasteful monotone from
the Manhattan telephone directo-
ry.
So of course at the Theus trial,
the conviction was admitted and
the State utilized it in every way
possible to attack Appellant's
character someth ing that was
more or less "permitted" under
the old law 29
B s II, 845 S.W.2d
changed that, and the Court of
Criminal Appeals interpreted Rule
609(a) as it reads, namely that
henceforth, for impeachment pur-
poses, a prior conviction must be
probative as to credibility in order
to be admitted; plus, this proba-
tive value as to credibility must
be "balanced" against its prejudi-
cial effect. The Court stuck wit
a group of five, "balancing-test
factors" found in most evidence
manuals, and noted that while
four of the five favored admissi-
bility, the conviction nevertheless
had to be reversed because (1) the
particular conviction had so little
probative value as to credibility
and great potential for prejudice;
and, (2) after admission, the trial
judge did not pennit the Appellant
to "mitigate" the prejudice, when
presented with the opportunity, by
allowing him to argue to the jury
the relatively minor facts of this
PrIOr.
Don't rejoice yet, however,
for here lie some interesting, and
very slightly confusing aspects of
this case, which should be care-
fully considered. First, do not be
misled by the "four ou t of fi ve
factors favor admissibility" part
of the opinion. These "factors"
evolved as an aid in helping a trial
judge properly apply the balanc-
ing test. But note that the first
"factor" is the "impeachment
value of the prior crime," and this
must, and can only relate to credi-
bility. For example, Weinstein's
first factor is "the relationship the
crime has to veracity. The trial
judge must then weigh this
against the conviction's potential
for prejudice. In other words, the
first "factor" is not only the most
important one, it is actually the
"thing itself," i.e., the ultimate
issue to be decided. Certainly, it
cannot be reduced to "equal foot-
ing" with the other factors, as
they are only "aids" in making
this determination. With that in
mind then, let's consider another
slightly confusing aspect, a com-
parison of the situations faced
under Tex. R. Cr. Ev. 404 (b), and
the Montgomery holding, 810
S.W.2d 372, with those under
Tex. R. Cr. Ev. 609(a), Theus.
One should carefully note that
(1) there is a slightly different bal-
ancing test for Montgomery than
for Theus, and (2) the terms, "pro-
bative value" and "prejudicial
effect" mean different things
under each rule and case as well.
Under 404(b), an "extraneous-
offense-type" prior conviction is
often admitted, for example, to
show "common design or
scheme." So it is actually a kind
of ','hybrid substantive evidence,"
which, because it tends to show
common design, actually tends to
indirectly prove the guilt of the
accused. Under 404(b), this evi-
dence "may be excluded if the
value is substantially
6u tweighed by the danger of
unfair prejudice ... " This balanc-
(
ing test applies to all relevant evi-
dence, and is used whether the
€vidence is sought to be intro-
.auced against the accused, the
". .
or a wItness.
Under 404(b), "probative
value" (and for simplicity, let's
just assume it relates to the
accused) means how compelling-
ly does the evidence actually
show "common design," etc.
hence indirectly, the guilt of the
accused. If it tends to indirectly
prove his guilt, it is inherently
"prejudicial." What renders it
inadmissible is if there is unfair
prejudice, i.e., weak on "common
design," but very strong on show-
ing "bad character," generally.
Under 609(a), "probative
value" means how compellingly
does it reflect on a witness's (can
be accused) potential for truthful-
ness. "Prejudicial effect" means
anything that connects it too
strongly with either guilt, or bad
character generally.
Under 404(b), the evidence
will be admitted if the probative
value is (1) greater than, (2) the
same as, or (3) less than the preju-
dicial effect. It will be excluded
if the probative value is substan-
tially less than the prejudicial
effect.
Under 609(a), the evidence
will be admitted only if the proba-
tive value is greater than the prej-
udicial effect. It will be excluded
if the probative value is (1) the
same as, (2) less than, or (3) sub-
stantially less than the prejudicial
effect.
Next issue we will consider
the present chronological status of
Theus, then perhaps close with
some suggestions on how possi-
bly to best utilize the effects of its
holding.
[to be continued next issue,
Editor]
DOCKET CALL 19
MAY/JUNE 1994
by Allen C. Isbell
Perusing The Code
of Judicial Conduct
Having no self-interest in the
subject, that is, not being presently
angry with a judge or judicial can-
didate, I perused the Code of
Judicial Conduct.
I neither knew nor suspected
that some of the rules in the Code
existed. This faulty knowledge
may be due to having observed the
behavior and rhetoric of judicial
candidates for more than twenty
years.
The Code of Judicial Conduct
contains very good rules that, if
kept, would make a judiciary that
all Texans could take pride in.
Knowing that every judge and judi-
cial candidate in Harris County
abides fully by these rules, I write
this column because some judges
or candidates in other parts of the
State may see this issue, and
become better informed.
Canon 1 UPHOLDING THE
INTEGRITY AND INDEPEN·
DENCE OF THE JUDICIARY.
This is appropriately placed at the
beginning. It reads:
"An independent and honorable
judiciary is indispensable to justice
in our society. Ajudge should par-
ticipate in establishing, maintain-
ing, and enforcing high standards
of conduct, and should personally
observe those standards so that the
integrity and independence of the
judiciary are preserved."
Canon 3 PERFORMING THE
DUTIES OF JUDICIAL
OFFICE IMPARTIALLY AND
DILIGENTLY. This demands
courageous judges.
B.(2) requires that
"A judge should be faithfUl to
the law and shall maintain profes-
sional competence in it. A judge
shall not be swayed by partisan
interests, public clamor or fear of
criticism. "
C. (3) requires judges to curtail
any bias or prejudice that a court
official or staff person may feel
toward those with whom they come
in contact:
"A judge should require staff,
court officials and others subject to
the judge's direction and control to
observe the standards of fidelity
and diligence that apply to the
judge and to refrain from manifest-
ing bias or prejudice in the perfor-
mance of their official duties. "
Does this include bias or preju-
dice toward the accused? Does this
include prejudice toward the crimi-
nal defense lawyer?
c. (4) probably applies to prob-
lems in Family and Civil courts
because the fee schedule for court
appointments in criminal cases is
below the fair market value of ser-
vices rendered. It is an important
ru Ie, however.
"A judge shall not make unnec-
essaryappointments. Ajudge shall
exercise the power of appointment
impartially and on the basis of
merit. A judge shall avoid nepo-
tism and favoritism. A judge shall
not approve compensation of
appointees beyond the fair market
value of services rendered."
20 DOCKET CALL
MAY/JUNE 1994
D. (2) says judges are to refer a
lawyer to the Office of the General
Counsel of the State Bar of Texas
or take other appropriate action, if
a judge has information that clearly
establishes that a lawyer has com-
mitted a violation of the Texas
Rules of Professional Conduct that
raises a substantial question as to
the lawyer's honesty, trustworthi-
ness or fitness as a lawyer.
I was unfamiliar with D. (1)
which imposes a duty on judges to
report other judges:
"A judge who receives informa-
tion clearly establishing that anoth-
er judge has committed a violation
of this Code should take appropri-
ate action. A judge having knowl-
edge that another judge has com-
mitted a violation of this Code that
raises a substantial question as to
the other judge's fitness for office
shall inform the State Commission
on Judicial Conduct or take other
appropriate action."
I wonder how often judges fol-
low this rule?
Canon 4 CONDUCTING
THE JUDGE'S EXTRA JUDI-
CIAL ACTIVITIES TO MINI-
MIZE THE RISK OF CON-
FLICT WITH JUDICIAL
OBLIGATIONS. This is an "eye-
opener".
A judge may participate in civic
and charitable activities. He may
serve as an officer, director, trustee,
or non-legal advisor of an educa-
tional, religious, charitable, frater-
nal, or civic organization not con-
ducted for the profit of its mem-
bers. But, there are limitations ,
including:
C. (1) "A judge should not
serve if it is likely that the organi-
zation will be engaged in proceed-
ings that would ordinarily come
before the judge or will be regular-
ly or frequently engaged in adver-
sary proceedings in any court. "
Does this include organizations
that picket or protest at the court
house?
c. (3) "A judge should not give
investment advice to such an orga-
nization, but may sen1e on its board
of directors or trustees even though
it has the responsibility for approv-
ing investment decisions. "
Is this a comment on the finan-
cial prowess of the judiciary, gener-
ally? Probably not, but it is a good
rule.
D. (1 )-(3) encourage judges to
divest themselves of investments or
other economic interests that might
require frequent disqualification.
Probably, this is more of a problem
with civil judges.
The Code prohibits financial
dealings between judges and
lawyers, which require "frequent
transactions". Caveat: the rule
does not prohibit a judge or a can-
didate from soliciting funds from
lawyers for a campaign.
I believe most judges and candi-
dates in Harris County are aware of
that caveat.
Canon 5 REFRAINING FROM
INAPPROPRIATE POLITICAL
ACTIVITY. This caught my attention.
(1) reads:
"A judge or judicial candidate
shall not make statements that indi-
cate an opinion on any issue that
may be subject to judicial interpre-
tation by the office which is being
sought or held, except that discus-
sion of an individual's judicial phi-
losophy is appropriate if conducted
in a manner which does not suggest
to a reasonable person a probable
decision on any particular case. "
Do special interest or single
issue groups respect the mandate of
this rule? It takes courage to tell
such groups that you will not make
a statement on a "controversial
topic" because the rules forbid it,
especially, when these groups
threaten to censure you to their
adherents and support your oppo-
nent, who may be less conscien-
tious about this rule ..
(2) says that judges or candi-
dates for judicial office "shall not
make pledges of promises or con-
duct in office regarding judicial
duties other than the faithful and
impartial performances of the
duties of the office. "
Campaign slogans that promise
to favor this or that group's interest
seem to violate this.
Can one be elected, merely
promising to faithfully and impar-
tially perform the duties of the
offices.?:.-_______- __
(3) says that judges or candi-
dates for judicial office "shall not
authorize the public use of his or
her name endorsing another candi-
date for any public office, except
that either may indicate support for
a political party. "
I believe I've seen this rule vio-
onclusion
The principle "that ends justify
the means" is morally flawed, but it
is a powerful agent in human
behavior. If a judge or judicial can-
didate believes that old adage that
"the first goal of a politician is to
be elected", and ignores the restric-
tive rules of the Code, society loses
ultimately.
DOCKET CALL 21
MAY/JUNE 1994
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22 DOCKET CALL
MAY/JUNE 1994
Update on
The Value
ofa Jury
Consultant
by Inese A. Neiders,
Ph.D., J.D., Columbus,
Ohio.
Acquittal: State of
Georgia vs. Randall
Hattaway, child sex
case
Lawyers: Charles
A. Mathis, Jr. Esq. and
Virgil L. Adams, Esq.
of Mathis, Jordon and
Adams, offices in
Milledgeville and
Macon Georgia.
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Charles Mathis is past
president of the
Georgia Trial Lawyers
Association. The firm
is noted for its civil
rights and plaintiff's work.
Jury Consultant: Inese A. Neiders, Ph.D., J.D.,
Columbus, Ohio
Facts: Randall Hattaway was accused of sexually
molesting a male child, two other males came forth
and alleged that they had been molested by Mr.
Hattaway fifteen to twenty years ago.
Jury Problem: The case arose in Milledgeville,
Georgia a small town in the Bible Belt in the heart of
Georgia. The lawyers are minority lawyers and the
defendant is a single white male who has never had a
conviction in a life that spans over six decades.
Individual sequestered voir dire as well as a ques-
tionnaire elicited information that one third of the juror
pool was composed of corrections officers or their
family members. Extremely negative statements were
made about child sexual abusers before the evidence
was presented. One juror stated that he was on the
grand jury that indicted Mr. Hattaway. One juror was
in a civil case in which Mr. Mathis had obtained a ver-
dict against him. Much critical information was
gained through the use of this approach (see "How to
Save Your Client While Saving the Court Time"
Docket 17 September/October, 1992).
Through the use of a questionnaire and a jury con-
sultant, the lawyer selected a jury that found Randall
Hattaway "Not Guilty".
CHARLES FORD
INTERNATIONAL
INVESTIGATIONS, INC
9301 SOUTHWEST FRWY.
SUITE 605
HOUSTON. TEXAS 77074
713·774·1575
DOCKET CALL 23
MAY/JUNE 1994
SCANLAN BUILDING
405 MAIN STREET
DOWNTOWN HISTORICAL LANDMARK
• EXISTING SPACE READY FOR OCCUPANCY
• TOTALLY RENOVATED OFFICE BUILDING
• SHORT TERM LEASES (30 DAYS - 5 YEARS)
• ADJACENT TO COUNTY COURT BUILDINGS
• 500 SQ. FT. TO 60,000 SQ. FT.
• 6,000 SQ. FT. FLOORS
FOR INFORMATION
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-
-
1 Family
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Congre••
Harrl. Harrt. Harrt•
County County Countr.
Admin I Civil Criminal
Building Court Court
Preston
OJ
Prairie
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405 Main Street, Suite 300
Houston, Texas 77002
Robert H. Cranshaw, Jr.
Phone: 713-223-4550
Fax: 713-223-4559