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COLUMNS
President's Message
Editor's Comment
Director's Perspective
Capitol Corner
Federal Corner
FWURES
The Rule: A Historical Perspective
By:John i%Stickds
The Knock and Announce Rule in Texas - Don't Knock, Don't
Announce, Don't Wony.
BY: R. K (%is) Renoer
A Jury Of Your Peers?
By hficBMickelsen
The 14th Annual RusfyDuncan Seminar Agenda
DEPARTME,NTS
New
ernb be& List
Member News
Lefter to the Editor
Criminal Justice News
Motion of the Month
Significant Decisions Report
Schedule o
f Events
Charter Member Quiz
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THE PURPOSES OF T C u d
The purposesforwhich the corporation is organized are:To protectand ensure by rule
of law those indiv~dualrights guaranteed by the Texas and Federal Constitutions in
criminal cases;to resistthe constant efforts which are now being madeto curtarl such
rightqto encourage cooperationbetween lawyers engaged inthefurtherance of such
objectives through educational programs and other assistance; and through
. such
cooperation, education and assistance to promote justice and the common good.
OFFICERS
STATEMENT
Voice for the Defense (ISSN 0364-2232) is
published monthly, except for
Janoa~y/Pebmaryand JulyIA~igust,wluch
are bimonthly, by the Tevas Crhiiml
Defense IawyasAssociation Inc., 600 V e t
13th Street, hstin, Texas 78701. Printed in
h e USA. Basic sobscription rate $40 per
y a r when received as a belief3 of TGDLA
nlen~bmhip.Nonmember sobscriptlons:
$75 m ~ ~ n l lPeriodic&
y.
Postage Paid at
Austin, Tarn.
POSTMASTER: Send address
changes to Voice for the Defense, 600 west
13111Street, Austiu, Texas 78701. Voice for
the Defense is published to edocate, twin
and support aftoixeys in the practice of
c1%11inaldefense law,
Please send aJl feature avticles to Greg
Westfdl, 500 IT Tlirochorto~~,
#1801,
Folt Worth, Texas 76102-7414, 8171336
5600. Please send all other materials for
publicntions to John Carroll or D'AIII
Jollnson at the TCDU honie office,
51W478-2514, fx 5121469-9107 or e m d
at djoli~ison@tullacam. Stakmem and
opinions publislred in the Voice are those
of the author and do not necessarily represent the positloll of TCDU No ~natedal
may be reprinted without prior a p p m d
and proper credit to the magazine @2000
Texas Criminal Defense lawyers
AssociaUon.
PRESIDENT Robert C. "Bob" Hinton, Jr, Dallas
CRESIDENT-ELECT Betty Blackwell, Aust~n
1st VICE-PRESIDENT Mark Danie!, Folt Worth
2nd VICE-PRESIDENT Cynthia Hujar Orr. San Antonlo
EXECUTIVE DIRECTOR D'Ann Johnson, Austm
TREASURER D a n Hurley, lubbock
SECRETARY Randy Wilson, Ab~lene
EDITOR Voice for the D d m s e John Carroll, San Anton10
EDITOR M g n l l i c m # Decisions Report Cynthia Hampton, Aust~n
IMMEDIATE PAST PRESIDENT Michael P. Heiskell, Fortwofih
DIRECTORS
ERIC M. ALBRIlTON lqpw
G. PATRICK BLACK T y b
WES BALL Mmgbn
LANCE EVANS Ft V&h
MlKE R. GIBSON El Poso
DAVID GUINN, JR. Lddxck
RONALD P. GUYER San A n b n ~ ,
KEITH S. HAMPION Aurhn
WILLIAM S. m
S R V&h
RODERIQUE S. HOBSON, JR. lubbod;
CHRISTOPHER N. HOOVER pbro
W.H. "BENNIE" HOUSE, JR. t h d a
J. CRAIG JETI Dalbs
JEANKIWRD Ausbn
MARTIN LENOIR DaAos
ROBEW LERMA &cmmile
H.W. "WOODY" LEVEREW, JR. Mdbrd
JESSE MENDU Lubbock
GEORGE MILNER, Ill bibs
TYRONE MONCRIFFE Hwrlon
WALTER "SKIP" REAVES Wesf
RICHARD RODRIGUEZ Horl~ngen
KARLA J.M. ROGERS V&
KATHERINE SCARDINO b t a n
GEORGE SCHARMEN S o n A n m
STANLEY G. SCHNEIDER Haurbn
RICHARD SEGURA, JR. Aurhn
RONALD SPRIGGS Amanlb
MARY STILLINGER El Pam
J. GAftY TRICHTER Hwr~on
MANDY WELCH H o u h
GREG WESTFALL FI M
DON WILSON Abrlene
PHILLIP WISCHKAEMPER Lubbock
ASSOCIATE DIRECTORS
WILLIAM CARTER Modlsonv~lle
MIKE CHARLTON Houston
CAROLYN DENERO Austm
ALBERT0 GARCIA Austm
MICHAEL C. GROSS Son Antonto
KNOX FITZPATRICK Dollos
DIANNA HOERMANN Son Antonlo
LOUIS ELIAS LOPEZ El Paso
LARRY MOORE Ft Wor~h
ANDY NOGUERAS McAllen
JOE SPENCER Ei Poro
JOHN YOUNG SweeWafer
AMICUS CURIAE
Ron Goranson 214.65 1-1121 / 2 14953.1366 (fax)
Bill Harris 8173325575 / 817335.6060(fax)
leff Blackburn 806371-8333 / 8063724652 fax
~obertC. Owen 5123200334 / 512-3208072 fax
RURAL AND S M A U TOWN
John Smith 409-598.277.1
CONTINUINO LEOAL EDUCATION
SPECIAL W O N / PRISON WATCH
David OnNed 936294-1663 / 409-4375293 [fox)
Tim Evans 8173323822 / 814332-2763 lfoxl
Gerry Morris 512-47986kl / 512479.6035 fbxJ
DUIA C W I L W
Cynthia Hujor Orr 2102241463 / 2102248367 (fm)
DTRllU INVESIIOUION
Mike A Ward 2813480884 / 281-7360562(fox]
Philip Wixhkaemper 804763-9900 / 804763-9904 (fax]
LULL OF C A M €
FmnkJadcan 214871-1122 /214880&243 (fox)
Chfkm "Scrapw" H d s 9057582203 /' 903-7587864 (fcuJ
SPICIAL LIAISON / COIRlCTlONS
Bill Habern 409-594.2 123 / 409594-9100[fox)
W O M l N & MINORITY DEFENDERS
WOMEN
Katherine Scardino 7135205223 / 713-5205455(fax)
MINORITIES
Lydia ClayJackson 4093241171 / 409-7560901 (fa4
aorn ANN~VERSARY
Craig Jew 214871-7676
John Carroll 2108297183
Hon. Frank Malone 5124744306
Weldon Holcomb $03597.5595
George Gilkerson 806-763-7373
IMMIOMTION
Simon Azar-Farr 2107364143
Robart Lerma 9565441910 / 9545444013 (fax)
INMOINY RRU-ON
Paul Looney 281597-8818 / 281547-8284 [faxJ
LIYYlERS ASSISTANCE
MANAOINO EDITOR:
D'Ann Johnson
IPOISLNIVE
Keith S. Hampton 5124748484 / 512-4749309 (foxj
FEATURE ARTICLIS EDITOR:
Greg Westfall
Wesfall & Plon
One Summit Ave., Suite 910
Fort Worth, TX 76102
Rick Ha en 9405661001 / 940757-9878 (fax)
Dan H U % ~ 8047700700 / 804763-8199(fox)
Stonley G. Schneider 713-951-9555 / 713-951-9854 (fax]
MEMBERSHIP
Randy Wilson 8005884678 / 91547'6 129 (fax]
Bennie House 713.6883398 / 7136800804 (fax)
Lydia Cloy-Jackson 409-7602889 / 409-756-0901 (fax)
Verse1Rush 940767-7567 / 940723-9972 lbxl
Sheldon Weisfield 956-546-2727 / 9565443426 (fax)
MElCmR
Carcdyn Denera 51242-1353 / 512-472-1316 (fax)
IIOMlNATlW
Betty Blackwell 5 12.4790149 / 512-3208743 (fox]
CAROLE AND SENTENCING
Gary Cohen 51247&6201 / 512-477-5778(fox)
PUBUC DE-DIR
CIDERAL
Marjorie Meyers 713-718.4600
Patrick Block 903-531-9233
STATE
Jane Roden 2144533550
Doug Schropmeyer 2144533550
PIeDucTIOW a s r W U N l t
Susan Vela Rice
TCDLA/Home Ofice 512-478-2514
DISlON .
IPRODUCROtb
Noel MacDonald
MCD Digital 5 12-656-8299
PrnNIIRel
MPRESS 512389CJ140
ASSllrrAm FIATWM ARnCLIS RDRour
Cynthia H. Orr 2 10/2241463
huiaror@aol.com
2900 Tower Life Bldg.
Son Antonio, Texas 78205
W. Regon Wynn 817/3365600
120 W. 3rd Ste, 300
Fort Wor~h,Texas 76102
APRIL 2001
I
m.TCDLA.COM
( VOICE FOR THE DECENSE (
6
I
~
p
~
p
p
presidentialPilgrimage
hfichaal Heiskell started his whole tbing in Pebn~ary,2000. His President's IVinter Tk@
to Banff was incredible! Befo~zit was mer, I was "Ordered to prod~~ce
a repeat performance $1
waited to be President this yar. Well, I did as I was "Ordered", and I am happy to say that, as far
as I could teU, a great time was had by aU.
Ow #Z son, Jeff,turned 18 the day we h d e d in Ca1g;uy. NatunUy, some on our bus from
the &port to Bmfffelt obliged to cause the driver to stop at the ticst refreshment retailer to stock
up forthe 90 minute ride. I was not aware that the legal age in Canada m 18 until I sawJeff return
the trip, Mike Heiskell, Dan Hurley, David
to the bus with his own hag of goodies. Thro~~ghout
Botsford, Gerry Goldstein, Tim hhns and otliers made sure JeE adequately celeb~ztedhis Canadian
"coming of age". Tlianks guys for all your thoughtful efforts!
During om stay at the incredible B d Springs llotel we enjoyed excellent early morning
C.L E, before launclling out into the mestneri7ingly awesonlesceoely for incomparable snow activi-
ties. Iu tlie evening wew0111dconvene in the outdoor hated pool to saniple exotic delicacies of bh~e
agave aid single malt, as we were entertained by liurley, Goldstein, Botsford, Wynne and otlte~s,ns
they rolled in the snow in their Speedo's, like a bu~ithof point bears.
Bob Hinton
MESSAGE
Betty Blachrell has served notice that her Presidential Wiiiter T~ipwill be to the beach. I
sliaU be #I on her trip list for d ~ aI tknow will he a spectacular experience. h'e~rtheless,the Evans,
Goldsteins, Hnrteys, Botsfofds, Cooks, Heiskells,Jetts, Wynns, Rays, Vitv,Villi~11~011~,
Lmbxights,
Hintons, Lydia Clay-Jackson and n~anyothers have dec~redthat we have a perpetual winter appointment with Ban@
I lovethisorg~kzation.Itsine~ubersaretl~ehestpeople on arih. Retreats of tlus natwe
provide the rich opporhmiry to spend quality leisue h e together, developing relationships which
retuun Imnieasutzble dividends, both personal and professional. I urge more n~embersto partiupate in fuh~reoutings. I extend niy most sumre appreciation to niy brothers and sisters who were
a part of this one!
Sincerely,
Bob
What a szlccess?Above left, are attendees enjoying "%Prm'dents R~~ptiooa"
Friday, March 16th,
2001. Above right, Randy McClnmmy, Program Coordinator for TCDLA, enjoys the great outdoors
wlth her daughter Rachel.
We are dl watcl@ the legislature to see \ h i t happens to indigent defense refonii, life witl~oi~t
parole and
proposed clmges in tl~eD\Vllaw But a n~ultihldeof other criniind llavand procedure legislationlias been
introduced Illis year, some of aliich may acludly becon~elaw This column will lugldigl~ta few of t l ~ epmposals tlmt have been made ill 77t1' Regular Session of the Texas Legislalure.
KINDER GENTLER JUDGES. HB 546 mould require Texas judges to take four hours of racial
sensiti~ttyIcli~iingas part of their continuing educalion reqliirenient. The trining ivoukl include clllhlrd
d8erences anlong etluiic or m i d ininorities in a progranl adnIinislered by the Coiu.t of Criminal Appeals.
AN END TO CAMPAIGN CONTRIBUTIONS. HB 589 wo11ld mandate rl~erecosnl of a
judge in a crii~inalcase if the judge had recei\,ed more illan $500.00 dollars in political contributions from
a party or an attonley of record, or the attorney's law firm in the preceding hvo years. Recusnl could be
waived \\liere but11 parties agree.
ARMING THE JUDICIARY. SB 118 woi~ldallowTexas judges lo can)yhaadguns at any lime wit11out requiring a concenled l~antlgunlicense.
RACE BASED SENTENCING. SR 133 n~ouldprohibit proseci~to~s
from n~entioninga defenrlant's
m e as a factor in determining filhlre daogeroi~snessin capital nnlurdcr czses.
RACIAL PROFILING. Sn 1074 would impose nleaslires designed to stop racial profiling by police.
I,aw enforcement qencies would be required to adopt written policies to address racial profiig and
aoilld be required to collect data on tra[lic stops for enilualion to re~~iew
tile agencies' perforlnance. In
co~nmentingon llle bill, the assistant cl~iefof the D a l h Police Deparlment ~ n q~~otetl
s
b g M a sayi~ig"1
think anyone would Iiae to be naive to say we don't have racial profiling"
COMMENT
IAWYER PROFILING. W 1712 mould require h e state bar to nmintain an online databsse for
public access wilh profiles of all lawyers in Texeras. The profile \vaul11d include details about a layer's education, lengtl~of p~.aclice,:inyspecialty certifications and disciplioarj and c r i i ~ ~ irecord
n l infornialion.
PROTECTION OF CHILDREN FROM CROSS EXAMINATION. HH 1167 TYOIII~
add an article 38.09 lo h e Code of Crioinal Procedure tbat would providc: In any criminal proceeding in
wlucl~a child yoanger than 13 years of age is a witness, t l ~ ecourt sl~allrequire that qi~eslionsdirected to
the cl~ildbe i n a form re;uonebly appropriate to the age and undersraoding of the cluld and s l i d limit the
uonecessaq repetition of queslioos directed to the child.
PROTECTION OF PREGNANT WOMEN. IlLl 1405 wui~ldenl~ancea ii~isden~eanor
assaid1
of a pregnant wonlan to a third degree felony. There woi~ldhe an dfirn~ativedefense in the case of a law
$1 aborlion(wl~atabout a C section?).
PROTECTION OF THE ELDERLY. HB 1550 ~ o u l enl~illlce
d
the punisli~~ient
for lllefi conmiitted against an elderly person.
PROTECTION OF THE HOTEL INDUSTRY. HB 878 specifies that the offense of cruiklal
trespass includes staying at a hotel loo long past checkout time.
PROTECTION OF THE QUICKIE MART. HB's 1563 and 2216 a ~ SH
~ 968
d provide for class
C n~isdemeanorp~~nisl~nient
for driving away from a retail establish~lw~t's
gas p u n p withoot py4ng and
requires a driw's license si~spensionfor subseq~lentotieoders.
PROTECTION FROM THOSE PESKY LASER
POINTERS. HB 319 would make it a class C nusdemeanor to
direct a laser pointer at a lmifonned public sdety officer.
39.14 to make witness statenlents and police repols discoverable. HB 77
would amend article 39.14 to make it more Like the federal crimind discove~y~ille
including granting discovely lights to the state.
REGISTRATION AROUND THE CORNER? Hn 195
would establish a central database for tire collection of inforn~ation
regarding persons suspected or convicted of propelty crimes against
the elderly
.
.
ROAD RAGE PROSECUTION. SB 977 niakes road rage,
aggressive, driving, a class B misdemeanor; a second degree felony in
the event of serious bod$ inj~nyor death.
SEALING WARRANT AFFIDAVITS. iiL~2044 would
d o w the sealing of search wvamnt &davits upon request of the state to
protect informiu~ts,ongoing investigations and wiretaps.
PUNISHMENT I N DRUG CASES INVOLVING
MINORS. HB 156 increases the penalty for certain controlled substance offenses in cases where a cldd younger than 18 is used to commit or assist in llle con~missio~~
of the offense. It also requires the sentence for such an offense to 11111 consecutively to any other sentence
imposed. Snch an offense would also be included in ArUcle 42.12, g
3(g)'s probation eligibility restriction. The original wording of this bill
appeals to violate Apprendi in that it alloms the enhancement of p e d
ty if tile aggravating factor is "shown at the pnnislm~entphase of the
tlial."
NO DRMNG FOR DRUG OFFENDERS. HB 1146
would require permanent revocatio~~
of driver's licenses for certain
repeat dmg otienden.
EVIDENCE OF INNOCENCE. rrrl 2352 wonld add alticle
38.02 to the code of criminal procedure which would provide: Evidence
which tends to prove that the accused is hmocent of the offense for which
he is charged is relevant and shall not be excluded on h e basis that such
evidence prejudices the State's case.
UNDERCOVER OFFICER TREATED LIKE
ACCOMPLICE. HB 2351 would prohibit a cdlninal conviction
based on the uncorrobolated testimony of an undercover law enforcement ofiicec
MEDICINAL USE. HE 513 would establish medicinal use as an
affirnrative defe~~se
to prosecution for possession of marijuana.
By the time you read tllis, some of the bills llighlighted in this
colunm niay have become law, or been rejected, to keep up with what is
going on in Austin, watch yonr TCDU One List e-mNI. at& this year,
wivllen all the dust clars, the Voice niU review the criminal law and pmcedure enactments of the 77th Legislative Session.
NO DEFERRED FOR SELLING DRUGS TO
MINORS. HB 2010 wor~ldmake persons charged with delivering
certain controlled substances or marilmana to n k ~ o r siueligible for
deferred adjudication (big deal).
N O GUNS FOR CHILDREN. HB 209 crhinalizes tile
possession of firearms by a n~inor(aperson under 17 y m of age)
unless the person is eugaged in lawful hunting or sporling activities or
is accomnpanied by a parent or guardion.
N O GUNS FOR CHILDREN 11. NB 1796wouldmake
the offense of making ahearni accessible to a cldd a state jail felony,
a third degree felony if the child causes death or selious bodily injn~y.
Currently, the offensesare punished as class C and A nlisden~eanors,
rapectively.
.
B M V A FELONY AGAIN. EtlB 31 becomeslaw, bw&y of a d u d e , once a felony, the11 a ~ilisdaneanor,will a w l be
a tl&d dqr?efelony, a second dqtpc felony if h e wllicle is a lail
ciu: If a mnlx!hg bfl, HB 504, p ~ a i l ssuch
,
a bu~&uyd
lonly
k a shk jail felony
EXPOSURE CAN BE A FELONY. s B 138 would
increase the punishment for subsequent indecent exposure and public
lewdness offenden up to that for a state jail felony.
RESTITUTION, WITH INTEREST. HB 355 would
allow courts to require restihition orders to bear ulterest.
RECIPROCAL DISCOVERY. SB 582 would amend article
Ken(AblM##er
H o u h n (19981999)
E.G. "Geny" Mont
Ausp'n (1597-19981
DavldLBokfuKl
Ausbn (19961991)
-=-=w=
Lubbock 11995-1996)
RmDddLeoNmsaI
DallasIlW-1%)
David R Birsr
Houston 11993-1994)
Cadd n. Ckkkkin
San Antonio (1992.1993)
kdgeRUD.hnes
Austin (1980-1981)
V
d Waker Perid
Dallas119191S3Yi
Houston (1978-19191
~~
Faifield.VA(1971-1918)
RidwnlAlmAndacon
Dallas11591-1W
w e f d o l l ~
Tyler(19761977)
limhmn
Forth Worth (IS%lS3t)
rudge. J A "Jim" Bob0
San Antonio (1975-19761
oaolge E. G i k e ~ ~
Odessa (1989-19901
khmrdA.Ml%eH
Houston 11988-1989)
aadm D. kdts
San Antonio 11987-1588)
-
Knox lorn'
McAllen (1986-1981)
DurprDurpr
*.
CDavklhms'
Lubbock(1974-1975)
PhilBulesDD*
Dallas 11973-1974
CAnlhonyRiloux,Jr.'
Houston(1972-19731
Han.RakMd#Py
Austinl1971-19721
Orange (1985-1%)
APRIL 2001
(
\HYYW-TCOU.COM
( V o l e FOR ME DEFENSE ( 9
I
WILL THE REAL
PLEASE STAND UP?
nie dispute beheen the district anornqs and tlie Texas Attorney Geneid went public last month in the
Court of Appeals srgument in the capitalniurder case of Victor S;tklano. While defense attorneys snickered at the controversy, lo& prosecutors ard o t h s are sounding an d a m that Genenl Comyn's
expandingintermin tlie criminal jwtice arena nriglitnot be to the long-term benetit of defense anmnep.
last June, Gwenl Cornyn surprised almost everyone when, contuxuy to the wishes of tlie local D A , lie
adtililtedtothe UnitcdStates Supieme Coo11that tlre state had erred ahwingthe testimony of Dr. Quijano
in the ponislment phase of Saldano's trial rn that testinloruy, Dr. Quijano stated that thehgentiuian defendant was r filture danger, and, as one of the factors iea~lingto that conclu~ion,that d~ defendant u u
Hispanic. The defense attorney did not object to the testinmy Sddano appealed theissue. The Conrt of
C r i n ~ Appeals
d
denied the request for a new sentencing h a g because there was no objection. But,
a h the eonfwion of error by the Attolney General, the Supren~eCo111%ordered the Court of Crimind
Appeals to reconsider its decision.
In response, tlre Court of Criminal Appals asked the httorney Gellad to brief the court on his authority
d State's ProsecutingAttorney conto represent the State. At oral argument, the Collin Couity D.A. ~ l l the
ceded drat the Attorney General had the authoxity to represent the state. But, so did fhey And the questin11
reniained-whenthe stare disagrees witb itself, uhich one t ~ ~ ~the
n ~other?
ps
PERSPECTIVE
The answer is not only not clm, but not likely to go amay when ibis caseis ove' Rob Keppfc of the Texas
District and CounfyAttorncysAssociation sad the Mdailo case is only olie example of the increasing tension bemeen local p~nsmtorsand the state agency Cornyn has bypwed local D.A.5 for investigations,
seinlres, and grand j11lypresenta8otls.R11sIy Hardin, a former Harris County prosecutor now in private
pmctice, sap U~atCo~nyais the nuost political Attorney Geneml lie 11% ever seen. Next to him, Jim Milftox
looks neutral. He uram tlunt Camp is using the criminal justice system for political reasons.
Senator Royce West introd~icedBiU 1192, wltich ssp the Attorney General will represent the State in an
matters before tlie Supreme Court This may resohe !he thorny problem ui Sddano, but the turf battle
could eayaud in other areas.
Note the ways that Counyi has expanded his criniinal jodsdiction. In the last legislative session, the cap
otl the antholily of the AG to hire 5 police officen changed. Accordiog to recent infoinlation, Geuia'd
Corny1 now 11% 41 liceiised peace oflicers on st&.
I
look at the website. Tbe most visible icons on the hon~epage are for
Texas Exile and the Texas b~terxetBurmu. Accoldu~gto the site, "Tem
Bxile is a crime-conhol hitialive that utilizes existing state and federal
gun laws designed to get to the root cause of gun violence-cdoliuds who
illegally uuse and carry weapons." The Intemet bureau helps chsc on
-line criminnls. Says Gencral Gornyn, '*Iintend to get tl~esecriminals
from behind their conlputels and put them behind priso11bars Tbe AG
pubbhes a Criminal Law Update, adwcatcs for crime victims, protects
against identity theft, and keeps tabson gangmerube~s.By the way, there
is informttion on getti~~g
ynur tattoos removed on the website xs wen
Other useful i~lfonuatiol~
under the Publications link is: ~ilagistrnfe's
Guide to the I'ieiina Conuemtion on Cons~clarA'ot$cations, Capital
Ptmis61nmt Appelhte Guide Book, Peimnl Code Offenses b~l
Punishment Range: npractiurl reference guide to TCYUShco, and an
Index t o p ~ n i l e - ropinions
e
oftheAttornq~Gene~uLYou caul
find tlus i~lformationat \~w~.oa~.shte.th.us
"
But For Books,
We Could Not
mow Ri@t
It is worth making a note of the activities of the Attorney General- 111s
next appeatance is more likely to bc in favor of a new indictment illan a
new sentencing hwing. And you might miss your local D.A when its
OVCL
join 50
and Texas ~ou16uomPublications among
others. l k c delivery and same clajvshipl)ing
TCDLA
Members
on a~ o~xie~s
Call 210.225.1107
at the
United States
Supreme Courl
October 1 5th,
Bookstore
11 07 Sari Patlro Ave., San Antooio, T v n s 7821 1
Tclephone:210.225.1107
Fax:210.
1478
2001
for a group
Induction.
Go to w.supremecourts.gov. for an application.
Send applications to TCDLA.
For information call (5121478.251 4
W R I L 2.001
I
m - T C D U . C O M
I
VOICE F O R THE DEFENSE
1 11 I
I
r
CCDLA MEMBERS NEWS ANNOUNCEMENT
MEMBER New Arrival!
to Greg G Mollee Westfall.
NEWS Congratulations
Westfall
lbt", 250
Gregory Bennett
arrived on Februaly
at
He weighed 71bs 5 ozs. Baby & Mom are doing fine.
p.m.
LCOMES
NEW
Jack b McGowen
Yon know about o w training programs. You h~o\\rabout the Voicefor the Defeilse. You
!mow about our legislative efforts. But, do yon know about the group rates for long distance,
credit card processing, and malpractice u ~ s u m c e ?Accordi~~g
to our recent su~ve):less than
11df of the lnen~berswho responded lu~omabout these perks. Because it is one of our goals to
provide tangible mernberslup benefits, we are now actively seeking new opporhlnities for group
discounts. As new relationships are established with widors, we will update a "Membership
Perks" sectiori in the laice and at TCDJA~OIII.As it curre~itlystands, the following ve~~dors
have made discount offers to TCDLA mcmbers.
LegalEdge Case Management Software is offering a group rate
to our mernbe~sbased upon the ~iutuberof people purcl~asulg.The company will also personalize the system to hslude the names, addresses, telephone numbers, and other biograph~cd
itlformatio~lof every Judge, Court and investigating agency in tlie State of Texas for the database.
Cnll Sem Kendorshi 610-975-5888 s 214.
I
Loislaw is offeri~~g
a 10% discount to our members.
Cull Ciid]~IVillinnrs nt 1-877-471-5634.~
2470.
R & R Bookstore in sat1 htonio is offering a "match or beat" the lowest price OII
alllegal materials. It will not cliarge for shipping and has EVERY legal publication imaginable.
C d Robot Do~iflldsorrn t 210-225-1107.
-
Bestline long distance se~viceis offering a fiat 8t per ilklute for iatra and interstate callitig to our members. There is no n~ontlllyfee, no time restrictions, and the bill is cdculated by
the 6 second inte~~als.
Cdl Srisie Pnge a/ 1-800-365-0038.
HLLS
IT'S BENEFerS
MIinsurance company olfers low rates for our members on ~nalpracticeins~nra~~cc.
Cnll Bnrbfirn IVbidderi nt 361-576-2186.
Brennes-Jones Group offers 0111. members the ability to accept credit card
palments at wl~olesalecredit card processing mtes tliro~~gl~
tlie TCDIA Bankcard Program.
C d A ~ tRogers
i
NI1-800-970-2592~1016.
HAS High Speed Access is offering our 111embersfree installation, bee equipment, no deposit, hee 100 MB of web hosting, and the first month of service free for DSL internet co~mections.CnllBimh~uEspimo n/ 1-877-743-4776.
DELL.COM is offering TCDIA referral fees for Dell hardware purcl~asedonline through
the TCDLA website. Go to TCDU.com for the Dell link.
Subscription Services Inc. is offering 111)to a 50% discount off the cover
price of ~learlyevery magwine printed for our inembers. CdilImif'w fit I-800-289.624%
Please call, write or e m d Kellie Bailey at kbailev@tcdla.comwith any illput.
To join see membership application on page 2 1
BEING A
MEMBEROF
I
The important Fair Defense Act (SB 7 & HB 1745) was heud in both the House and Senate committees.
Other than Representative Terry Keel, the bill met little opposition from legislators on the committees, and
no one testified or signed up
the bill. HoweIzer,judges from across the state (pauficularly from
. against
.
Harris Counly) are eitl~erloke-wamm or vigorously hostile to i ~ bill.
e Bill Beardall of the Fair Defense
Project, Professor Bob Dawson, and Allen Van Fleet gave ooutstmding presentations to legislators s b o ~ ~ t
the necessity for (and details 09 the biWs regulation of and help for court-appointed attorneys. Key feah~resof the bill include an Indigent Defense Comcil, state funding for procetluresfor appointment that
are fair, neutral and objectively-based, as weU as standards for appointment. The current battleground
concerns who approves paplent (judge or auditor), the rate of pay, how disputes about pay 114l be
resolwd, and how those on b.aA should be treated. "Plea mills," "lan~ersfor the day," and other similar
prnctices appear to be eodangeted- by TCDIA, \T1e intend for there to be zealous advocacy for the poor
person accused of a crime. We dso intend for the conmnutted lawyer to have the resources from which to
tmlyh~ffill
her role in this lopsided ad~re~sa~y
system. We intend to make the system as we currently know
it to he fair. This endeavor is s difficult as you might in~agine,b111 we are doing our best, md at the
moment of this writing, succeetlu~g.
The DNA bill is in the Senate, after having been amended with four fawari~blean~endnlentsin the House.
SR 89 and HH 6, the ugly DWI bills are well on their way to h e c o n ~ ~Ian:
g George Scliarmen courageously got in the way Under these bills, a person con~niitsan o f h e (class C) if the person knowingly
possesses an open container in s passenger area of n motor vehicle that is located on a public hi hway,
regaldless of wl~etberthe vehicle is being operated or is stopped or parked. Those who get a 2" fi D\VI
nithi~l5 years get their license suspended for a year (no occnpationd license). Tews' enthusiasm for
these bills can be gleaned from the bills themselves, w11ich state:
c4m"oL
CORNER
I
Capitol Corner Cuntittrred
1
I
1
I
alcoholic heuernge in thepnssengerarea of any
a p b k high~uayor the
motor mhiclel~~atedon
right-of-way of a public highway, is repenled w
has m i r e 4 (2) a UnNsdStataconrtofappeah
or the United State8 Supreme Coart has entered
apnal order holding that 23 U S 6 Section 154,
or afederal r?gulation iinplemzting that section, is unconstitnfionalor otherwise inualid,
in whok or in @I?; or (3) a subsequent@
enacted act of congress has the effect of abrogatirg the sanctions required by 23 U.S.C.
Section 154.
Dear BoardNemhers &%a#
Thank you for the scholarsllip to anend tbe DWI 2001 Trial
Notebook Seminar in Austin. 1 cef!ainly tea you !hat as a new lawyer,
and in partic~dar,a new l a w y practicing criminal defense, I found the
seniinx invaluable. I am just starting to get my h t few DWI mses, and
now at least I have some idea wbat to teU and ask my clients, wbat to do
about the ALR hear, and what to look for in the offense report. 111addition,1 have been given tools, ideas and guidelinesfor trial.
Also, HB 63 flew out of comnlittee; it enpowers police to yank tbe
license from the dri~~er
upon arrest for DWI. It was sponsored and
enthusiastically championed by Rep. Steve Wolens of Dallas.
Tl~eTCDU has been, and continues to be a tremendous
resource for me; Ilook fonmd to the day when I can return the favor with
my financialsupport Iu the meanrime, you have my professionaland personal conimitment. Again, thank you.
And the census figures are in. This is a redistrictingsession, Attention
spans are di~i~inisbing
rapidly, and wl~ilethe session is not officiallyover
until May, much proposed legislation is already falling by the wayside.
Sincere&
~ o U E.
y Odom
Attorney At la\r
Psvcholonicd Evaluations
BASSETT JOINS FIRM
Minton, Bu~lon,Foster & Collins is pleased to mlounce hat h l l u e l F.
Bassett has joined ihe firm. Sam is b o d certiJied in crinmnl law aid
IS presently the chairn~anof tl~e
Crimind h w Section of tbe Travis Cou~lty
Bar Assocmation. Sam has pmcticed criniinal law (fede~dand M e ) as
weU as family law since 1988. He is an active menlbcr of the Texas
Criminal DeIense lawyers' Association, the National Criminal Defense
Imps' Association, tlie Vfliamson County Bar Association, tbe Tnvis
County Bar Association (criminal K family law sectio~~s)
and the Robert
Cdvert Chapter of tbe An~erica~~
h l s of Court. %n,lais a g~xduateof the
U~uversityof Texas (B.B-4 whonors - 1985;J.D. - 1988).
A STRONGER BOND
Doug Tinker, Cbarter member of TCDLA, and his son, Andy S I I I W C ~
three roaring storms, one with 65 n~pbwinds and 30 foot seas, in their
40 foot sadboat. Tlle last storm nwly capsifed hem repeatedly and
numbed them with h)~othcrnua.Tl~cboat's boon1 broke and tbe main
sail ripped. Then their tmismission gave out. The boat lay dead, tossed
by 30 foot swells Andy had bis hluncss on ttying to tie a line hom a ~1%form boat to tbe sailboat. He slammed into h e boat agdn and agdn, getting ducked about every second wave. The ordeal helped forge a strong
bond behvcen fatber and so11 Doug Tinker, 66, represented Yolanda
Saldivar, who wm convicted of kilhg Tepmo stxr Selena.
Video &Audio Critiques
OffeuderTopology Determination
False AUegatio~~s
Seve~ityoff Offense
Jury Science
Parental Alienation Assessment
AlcohoVDmg Assessme~lts
Child Suggestibility
Adoptiot~Home Studies
AddictiotvDependencece Determination
Assessments if Suitability for Community Supervisiou
Refereme Appoint~ne~~ts
Accepted
David 0. Navarre,
LMS\V-ACP, DABPE
Navarre & Associates
-
..
313 E. Ruudberg Lme, Suite 103, AIIS~~II,
Texas 78753
Telephone: (512) 836-4567
APRIL 2001
(
\N\HW.TCDLA.COM
I
VOlCI
.OR
THE DEFENSE
1 16 1
On Eebrua~y20,2001, the Supren~eCourt held that a poIice officer's refusal to allow a defendant to
enter Ids own residence --unless accompanied by a police officer -- until a search uarrant was obtained uBas
a "reasonable sein~re"that did not violate the 6ouih hiendment. lllinois v hlcArthur, -U.S. -,
ZOO1 WI. 137449 (U.S.).
The case began when Tern i\l&d~ur asked two police officers to go with her to the tniler where
slie resided with her husband, Charles, so that they could keep the peace while she went inside OI retrieve her
belo~igings. The two officers went to the t d e r hut rmnajned outside uhile Ten went in.
When Tera came out, she told the officersthat they sl~ouldcheck the t~ailerbecanse "Chuck had
the coach." One
dope m the^." She went on to say tha~she had seen Chuck "sIid[el some dope umde~tiea~I~
of the office~s
writ to the door, told Mcl\l.thnrwhat his wife had said and requested permission to search the
tmiler. When hlcArthur refused to co~~sent
to such a searcli, the other officer left w~thTe~ato obtain a searcli
wamnt.
hlckthur, who was by theti on the front porch, was instn~ctedthat he could not reenter his trailer
unless a police officer accompanied him. On two or three occasions, MCAIZ~II~
did go inside tlie h d e r to
get cigarettes and to make phone calls. Each time, an officer stood just inside the door to obse~vewhat he
did.
After about two houts, the officerurliohad obtained the wanant returned to the tmiler and, along
with other officers, searched it. Under the soh, they found a marijuana pipe, a box for marijoana, and less
than 2.5 grams of ma~~junna
41KR. "Br~ck"Files, Jt:
FEDERAL
CORNER
in the trid comt, i\fchtlmr filed s motion to suppress tl~eevidence seized by tlie officers His
motion uras granted ant1 the Appellate Com of llllnois affir~nedthe trial comt's o r d e ~The lllinois Supreme
Court denied the State's petition for l w e to appeal The Supreme Court granted ce~tiomito determine
whether the b'ooulth Amendment prohibits tlus kitid of tempomy semre
It was absol~~tcly
no st~yriseto see that the Supreme Court reversed the judgment of the lllinois
Appellate Co111t The exceqts fiom tlle opinion reflect the logic of the court's decision:
In tl~ecirc.cunis@ncesof the case before us, we cannot say
that the warmtless seizure was per se unreasonable. It iwol\~esa
plausible claim of specially pressug or urgent law enforccn~ent
need, i.e., 'exigent circunistances '
Moreover, the resh%int at issue w s tailored to that need,
bclng huted in time and scope, cf. Teny Y. Ohio, sup*, at 29-30,
88S.Ct. 1868, andavoidiugsignificantintrusion into the home itself,
cf. Paytan v Nm York, 445 U.S 573, 585, 100 S.Ct 1371, 63
L.l?d.Zd 639 (1980).
Consequently, rather than employing a per se rule of uereasonableness, urebalance
the privacy-related and law enforcement-related concellis to determine if the int~wionwas
reasonable.
We conch~dethat the restriction at issue was reasonable, and hence lawF111,in light
of the foUowi~~g
circumstances, wluc11ure consider in combi~lation.Fust, the police had probable cause to believe that hlckthur's hxiler home contahed evidence of a crinie and conttxband, namely, unlawful dn~gs.The police had had an opporh~nilyto spmk with Tera McArthur
aud make at l a s t a ve~yro~ighassessn~entof her reliabiliiy They knev she had had a Brstl~and
oppoaunity to observe her husband's behavior, in particlilar with respect to the dmgs at issue.
And they thought, with good reason, that her repoll to them reflected that opporhlnir)!
[Note: This is the wakest paragraph ~ I the
I opinion. It ignores the obvious: Tern obviously had both a motive and the oppoF
tunity to "plant" the marijuana and the pa~qd~ernalia
-- and the o f k e n could not have known whether sllc did that or not.]
Second, tl~epolice had good r m o n to fear that, unless restrained, McAlIlmr would
destroy the drugs before they could return with awvarraut.
Tlley reasonably could have concluded that hlcA~tIm~
co~lsequentlysuspecting an
i~uminentsearch, would, if gjven the chance, get rid of the dugs f s t .
T l ~ dthe
, police nlade reasonable efforts to reconcile their law enfo~wmentneeds
wit11the d e ~ e u ~of
d sperson4 privacy. They neither searched the trailer nor arrested h l k t h u r
before obtaiuing a warrant. Ralllei; they i~uposeda sig~lificmtlyless restrictive resf12i11, pre.
veuting h1kll1ur ouly fro111 entering the trailer unaccompanied. They left Itis home and his
belongings intact -- tir~tila n e n t d Magistrxte, fi~dingprobable cause, isswd a warrant.
Fourth, tl~epolice iniposcd the restmint for a limited period of time, naniely, h\,o
hou~s.Cf. Ter~yv. Ohio, supra, at 28,88 S.Ct. 1868 (~uannerinwhich police act is 'Vital pad
of ... inquiry'). As far as the record reveals, this time period was no longer than reasonably
necesmy for the police, a c h g %withdiligence, to obtain the wauxnt.
...
In various other circonistances, this Court has upheld tenlpomy rest~vhtswhere
needed to p r c s e ~ eeviclcnce until police co111d obtain a waumt. See, e.g., United States v.
Place, 462 US., at 706, 103 S.Ct. 2637 (reasonable suspicion justitlcs brief detention of lugggagependiug h~rtheri~vesligation);Uuited States Van Leeuwen, supw, at 253,90 S.Ct. 1029
(reasonable suspicio~lj~lstiEesdetaining package deliwed for n~ailing).Cf. Richards r!
Wisconsin, 520 U.S. 385, 395, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (no need to ' h ~ o c k
and announce' when execiiting a search chw~xntwhere officers reasonably suspect that endence might be destroyed); Carroll v. United States, 267 U.S. 132, 153,45 S.Ct. 280, 69 L.Ed.
543 (1925) (warrantless search of auton~obilecoustitutiondy pernussible).
I
AN UNHAPPY WIFE CAN PREC4PllXlE AN EXIGENT QRCUMSCANCE
We hme found no case in wvhicl~this Comt has held unlawful a tempomy
seizure that was supported by probable cause and was designed to prevent tile loss of evidence while the police diligently obtained a wvamt in a reasonable period of time.
The Appellate Court of Illinois concluded that the police could not order
McAhur to stay omide his lmne becauseM&~h~~Psporch,
where he stood at the time,
v 'amounted to a constructive eviction' of McArthur
was part of his home; Ilene the order
from his residence.
Tlus Court 11asheld, howe er, that a petson standingin the doonvay of a house
is 'in a 'public' place,' and hence subject to arrest without a m r a n t pernutting ently of
the home. United States v. SanMna, 427 U.S. 38, 42, 96 S.Q. 2406, 49 LEd 2d 300
(1976). Regardless, w
e do not believe the differenceto which the Appellate Court pob~ts
--parch versus, e.g., front \vaIk-- co~ddn~akea sigmficant differencehere as to the rmson;lbleness of the police restmint; and tlrt, konr ihe Fourth Anla~dment'sperspective,
is what mattels.
The Appellate Court also found i~egativelysignifiunt the fact that Chief Love,
consent, stepped inside the trailer's donmay to obsewe hlcllrhur when
with McArtl~~~r's
hluhthur reentered the t~xileron two or 1111~occt~doiions.304 IApp.3d, at 402-403,
238 IILDec 847, 713 N.E 26, at 98.McArthur, I~owever,reeutercd simply for Ms own
conuenia~ce,to make phme calls and to obtah~cigwettes. Under these circumstmces,
the reaso~~ahleaess
of the greater restriction (pr&nting rcmhy) implies the r a m
ablencss of tlle lesser (pemitting reently conditioned on obseivation).
In sum, the police omcers in this case had probable cause to beheve t11a a
hon~econtained contraband, wluch was evidence of a crime. They raonnhly believed
that the hrrme's resitlent, if left free of any rest~xint,would desttoy that evidence, And they
imposed a restraint Ilkat wa.s both limited and tailoied reasonably to secue law enforcement needs while protecthg privncy interests. 111our vim; the restraint met the Fourth
Amendment's demauis.
I suypose Illat the lcssm from this case is that a doper in an 111d1ilppynlatriage sho~tldlave Ids wife's belongings OII t11c
front porch. He might \\ri~~d
up with a problen~in a family law court -- but that beats being the defendant 111a cdminal case.
I
--
GEORGE ROLAND MEMORIAL SCHOUR!SHIP
The CoUin County Criminal Defenselawyer's Asoc~ationmd the Roland fanrily have establisl~eda
sd~olnrshinto award to a Collin Countv
.$2.000
,
, Hie11School senior with asdrations of a caseer in law.
CCCDLA would gladly accept any donations from TCDUmembers in ntemory of George Roland.
Donations should be made to the "George Roland Memorial Scl~olarsllip"and n d e d to Ms Darlina
Cmwder, Treasurer, CCCDLA, 1415 Harroun Street, McRinney, Texas 75069.
-
SELLING CRACK ON A PALM PILOT
A new dmg-rclaled compute1 @me isDope Wars for the Palm. The game allows the player to become an
urban drug deales buying and selling a wide array of narcotics Law enfoscement officials say it glamorizes violence and the drug tnde. Since it was released in February 1999, more tl~an180,000 people
have down-loaded it far free from www.donewars.db.net
-
MCKINNEY JUSTICE OF THE PEACE GOES WORLDWIDE
The Justice Court in Precinct One now has a web site at www.tehasiudee.com Exanunhg trials and bond
reductions can be fled by dowdoadiug a forn~and faxing if to the office. Attorneys can a h send email
messages to the Cl~lefClerk And the clwk can send court dates, codrmatlo~~s,
and delays backto the
attorneys by email.
FATHERS SHAKE BABIES M O S T
An eight yw study on Shake11Baby S ~ d m mfomd
e
tllwt fathers aremosl oftcn the perpelntors (35%),
followed by the mother's bovfrieud (15%). In 35% of the mes, the pelpetlator was never found. For
more ~nfor~nation,
see wwwshakeubabvcom
JUDGES CANNOT ETHICALLY SERVE ON JUDICIAL
COUNCIL O F VICTIM'S RIGHTS COUNCIL
Etllics Opiniou 270 (2001), issued by lhe Committee on JudicialEthics, states tbat it is a violallon of tbe
Judicial Cannus of Etlucs for a judge to serve on a couucil whose missiou is to prwvide a professional,
comp;lssionate a d coordinated approach to the t~eahnentof sehually abused childre11and their fanlilies
and to serve as ; u ~advocate for all such children in the communiW. The p~acficewas questioned d c r
jurors were solicited for donatious by a judge for such a com~cil.
UNUSUAL PHOTOCOPIES
A man was clmrged with dtsturbing the peace dter be allegedly pulled down his pants in tile first floor
lobby of a busy courtl~ooseand photocopied his buttocks. He made two copies and w
w working on the
tllird w&u the police officers arrested h n . HIS attorney is still working on the theoly of tlw defel~se.
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Federal Law Short Course, September 2000
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U Federal Law Short Course, September 2000
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Members
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V O I C E forthe Defense Your membership includes a l0.issue subscription to TCDLA's oflicial journal. It is packed with detailed articles and
motions, written by and for defense lawyers.
EDUCATION Receive timely updates about developments in
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sewice, and at TCDLA seminars.
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discounts on seminars and publications.
STRIKE FORCE Whenever zealous advocacy results in
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to support its programs as it educates the legislature, public and criminal
defense bar!
GET INVOLVED! We need your help to suppottihe only
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questions. Contribute to a committee such as the Amicus Curiae Committee
and let us know who you know in the legislature.
ELIGIBILITY: A member in good standing of the State Bar of
Texas (student and affiliate applicants excepted) who is engaged in the
defense of criminal cases is eligible for membership upon approval of
application and receipt of annual membership dues. An application
must be endorsed by a member in good standing. Members of the judiciary (except honorary members) and those regularly employed in a
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Signature of Member
Member's Name
NO. 33795
STATE OF TEXAS
IN THB D I m m COURT OP
VS.
FORT BEND C o r n ,
DAVID HOYT TUCKER
240TH DISTRICT COURT
DEBENDANT'S MOTiON TO EXCLUDE USE OF PREJUDICIALTERMS
TO THE HONORABIBJUDGE OF SAID GOURI!
Defendantstands charged by indictment with the crime of aggrnmted sexual assault, which crime is
alleged to have occurred inore d~anten years ago. The compL?inant is Defendant's sixtecn-year-old daughter
who didnot make Ihe allegation againstDefendantunlil &rDefendantbs daughter had been subjected to h o s t
a year of "camseling",together with the administration of psychotropicmedications. There is no evidence in
the contempomneoos n~edicalrecords relating to tlus child which would corrobo~teher allegation of having
been raped when she was 4 or 5 yeas old.
Defendant therefore moves that the prosecution be prohibited from the use of prejudicial terms at
terms include the use of the word
trial, du~fngjury selection, or in the presence of uritnesses. These prej~~diclnl
"victWin refa~ingto the witness agdnst whom the cmne of criminal sexual conduct was allegedly committed
The purpose of this motio~~
is to prevent the prosecution front ignoring its duty to prove beyond a r a sonable doubt that the cmne of criminal sexual cond~ictUI the h t degree was actuaEy conin~ittedand that
Defendant corm~littedthe crime as cliafged. The purpose of this n~otiouis also to prevent the pprsecutinn from
interjecting the prosecutor's pe~wnalopinion that a crime has in fact occ~ured,or that the uifnessactually suffered an attack as alleged in h e indictment.
In support of this n~otion,Defendant relies upon the wgunlent set forth UI the mem0mIdu~accqmpanylng this motion.
MEMORANDUM IN SUPPORT
Due process requires nkrimd injection of enor or prejudice into these proceedings. Use of terms
such as "victim" allows the focus to shjft to the accused rather than remain on the proof of evely element of the
crime alleged by the conipldnant. As a tlireshold inquiry, the prosecution nlnst first offer aiough evidence for
a courtto conclude that arational trier offactcould find that the essen&d ele~nentsof the crinie have been established In re Wiuslup, 397 US. 358 (1970); Jackson v. Virgiaia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed 2d 560
(1979); Iepert v. Shte, 908 S.X!2d 217,219 (Tex. Crin~.App. 1995) (en banc); Short v. State, 874 S.W.2d 666,
~ 1994) (en banc); Article 38.03, Tex. Code Crm Proc..
667 (Tex. C I App.
The suficient evidence requirement is a pad of e w y criminal defendant's due process rights. It is
an attenlpt to give "concrete substance" to those rigl~ts,by precluding inxtiod ju~yverdicts. Jackson, 443 US.
at 315,19 S.Ct at 2786. As the Jackson cou11 explained:
"The [In re Winship, 397 US.358 (1970)l doctrine [requiiingproof of guilt bepnd a r a sonable doubt] requires niorc than simply a tiial ~itual.A doctrine esrablishingso fundamental a subshntive constitutional sfandwdnmust also require that the factfinder d
lmtionally apply that standard to the facts in evidence. A 'reasonable doubt' at a minimum, is
one based upon 'reason.' Yet a properk insh'ncted july may occasionally convict even
a l of fact could find guilt beyond areasonable doubt.
when it can be saidthat oo n t i o ~ ~trier
443 US. at 316-317, 99 S.Ct. at 2788.
Defendant is presumed to beinnocent of the chaqes @nst hiru Bluev State, -S . W M , 2000
WL 1827705 @ex. Cdm. App. 2000) 'The presumption of innocence, althot~ghnot actindated in the Constitution,
is a basic conlponent of a fnir trial under our s)steni of uin&al justice!' Fstelle v. Willim, 425 US. 501,503
(1970. Working &omthe premise k 7 t an accwed is innocent until proven guilv, it is the prosecution's burdm to
prove beyoi~daimanahle doubt the essential elementsof the clime alleged. Thispresun~ptmncontimues thoughout the hid and h~todelibcmtions.
Defendmt denies illat crinlinal sexual conduct occurred in this case. The burden of the prosecution should not be allc\iated, nuoimi~edor diminished by the use of loaded wonls w11icl1imply that the prosecution l ~ a met
s its burden of proof illat the crime alleged lm actually been conmutted. The use of
the word victim by the prosecutiol~is an altempt by the prosecution to imply, fro111the outset of the case in eoir dire, and tl~rougl~out
the trial, that the State
l ~ a met
s its burden of proof that the alleged cri~ne11% in fact heen con~n~itted.
Respectfully sublritted,
L.T. BRADT, PC.
L.T. "Butch" Bradt #02841600
6303 Feldspar
IIouston, Texas 77092-4716
(713) 681-2696
Pas: (713) 688-8212
Attorney for Defendant, David Ho)t Tucker
CERTIFICATE OF SERVICE
I, the uodevsigned attorney, certify that a true and correct copy of the foregoing w
w l~and-delivered/ faxed / oldled, proper postage &xed
wrapper addressed to:
J o h Healey
Fort Bend County District Attorney
309 South 4th Streel, 2nd Floor
Richn~ond,Texas 77469
~ I Ia
on this 19th day of Febsoa~):2001
L.T. Bmdt
NO. 33597
STATE OF T W
N THE DISTRICT COURT OP
VS.
FORT BEAT7 COUN'IY, TEAS
DAVID HOlT TUCKER
240TH DISTRICT COURT
ORDER ON DBWNDANT'S MOTION
M EXCLUDE USE OF PREJUDICIAL TERMS
Defendant, Dayid Hoyt lhcker's Motion to Exclude Use of Prejudicial Tern~shaving been presented to the Court, the Court is of the opinion that the
Motion SHOULD be g ~ ~ n t e dIt.is, therefore,
its District Attorney and thraugl~its Dishict Attorney, all witnesses c d e d on behalf of the State, shall be
ORDERED that t l ~ cState of Texas, tl~rougl~
prohibited Iron1 the use of prejudicial term at trial, du~ingju~yselection, or in the presence of witnesses, including, lg,'ithout Iinlitation, the use of the word
"victim" in referring to t l ~ cwitness against U ~ O I I Ithe crin~eof crin~inalsexllal co~~duct
was allegedly committed.
day of Febma~y,2001.
SIGNED illis
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I
THERULE:(
A HlsToRlcAL PERSPECTIVE
B y : J o h n W. S t i c k e l s
John K Stlckels attended ~ e w s
Tech L m s Schoolgrfldrr~~ted
with inrn
degree iin 1983. PhD e.~pectedfiomthe
LBJSchool of iJrrDlicA~iirs
in ~Iiq~
2002. Por111er143rdDislrictAttor11~~'.
Formr 1PflrdCorr11!1,
Attor~~ejz.
Bierrrber
TDCU. Professor in the CrirrrirrnlJ~rstice
Depwtn~errtflt Sofrt1111:esl
T e . w Stflte
Urriu. Bonrd Certified in C r i r ~ ~ i n f l l ~ r ~ ~ ~ .
7Wds"I'olrrnre32, Book lir:o - Te.m Tech LNIU Keuietfl. Actic,e!l,e~rgflgedirr the
prflctice of o i ~ ~ ~ id&rse
r r d lflru
One of the first tl~ings111:slaw sh~dents\vho participate in hlock
Trial learu to do is invoke "The Rule" at the start oE a trial. As \sve all knoq
'"he Rule" is the requirement that witnesses IIIIN be excluded from the court~ O O I I ISO they camot hear the testinmy of o t l w witnesses so the vitness's testimosy wiU mt be influenced by h e testi~nonyof o t l w witnesses. IIITexas, the
authorit). for "The Rule" is Rule 614 of the Texas Rules of Evidence.
\Ve dl !u~o\v\\.l1:11 "Tl~eRule" is and h o v lo invoke it. But, sometimes we forget its true purpose and ho\v we c:le effectively use it at trial. One
of tile best exal~~ples
of the effectiveuse of "The Rule" is Io~indin "The Histo17
of Susan~~a"
located in the i \ p o c ~ ~ ~Sosatma,
l ~ a . ~ written by the Propl~et
Ih~uel,is one of the ~ ~ ~artistic
o s t and lbeautifully rvritte~~
short stories in the
\vorld. This sto17is based on the age old tl~elneof the lriumph of good over
erril,firludes the narrow escape f r o e ~death of an i n t ~ o c e victim,
~ ~ t explains
how ',The Rule" came into being, and I~o\vseparating witnesses swed the life
of an iunocent young \ \ z ~ ~ ~ ~ i ~ ~ ~ .
This is the st017 of S I I S ~ I Iaccording
III
to Daniel: Am1 he
Uonkiml took a wife I I ~ I I Susm~na,
I ~ ~
the daughter of llilkiah, a very bcautihd
woman a ~ olle
d w11u feared the 1.ord. Her parents \ w e righteous, and l~atl
taugilt their daughter :scordiog to the law of hloses. ]oakim TW re17 rich, and
11ad a sp:sions gardell adjoining his Louse; and the Je\\s ilsed to come to hiin
because he nas the most honored of t1le111dl. III that ye:a hvo elders irorn the
people were appointed as judges. C o ~ ~ c e n ~ itnl ~g e nthe
~ Lord 11ad said
"Iniqoity came forth from Babylon, from elders w l ~ owere judges, wllo were
supposctl to govern the people." Tllese I I I ~ I Iwere freq~~ently
at Joakinl's
house, and :dl nrho lutl suits at law came to then^.
\\'l~en the people departed at noot~,Susmoa
\vookl go into her 1111sband'sgarden to ~valk. The hvo
eltlers used to see her every d a going
~
i s a d wtlking
about, and t l q begau to desire hel: h d they pcnrrtetl
their minds and tun~etlaway their eyes ~ O I I looking
I
to
Heaven or ren~emberil~g
rigl~teousj~dgments.Both were
o \ * e ~ w l ~ e hwit11
~ ~ e passion
d
for her, but they did not tell
each other of tl~eirdistress, for they were xsllamed to disclose tlleir lustful d e s k to possess llec And they watched
eager1~day after day, to see l~el:
They said to each othel; "Let us go Lome, for it
is n~ealtime." And when they rne~~t
out, they p m e d from
each other. But turning back, they met again; and \\hen
each pressed the other for the renson, they co~~fessetl
their lust. And the11 together they arranged for a time
when they could find her alone.
Once, wide they were wtclung for an opportune da): she nent in as hefore nit11 only hvo nlaids, and
wisl~edto t h e ~ I the
I garden, for i t m s ve17hot. h d no
one \\'as there except the two elden, \v110 had hid themselves and were ~vatchingher. She said to her maids,
"Bring me oil and ointmeats, and sl~utthe garden doors
so Illat 1 may bathe." They did as she said, slut the garden doors, and nrnt o ~ byt the sitle doors to bri11g ~v11at
they 11ad been commanded; and tl~eydid not see the
elders, because they were hidden.
\\'hen the e:lids l ~ a dgone out, t l ~ chvo elders
rose a ~ rau
d to her, and said: "Look, the gartiell tloors
are shut, no one sees us, and \ve are iin love \vith )nu; so
give your consent, and lie with us. If yo11 refuse, wc will
testify against yo11 ll~ata ~ O I I IIII ~I ~ Iwas
I
with you, and this
\\as why you sell1 y011r lnaitls a\\a)!"
Susanna siglled deeply, and said, "I at11
11etl11nedit1 on e v q side. For if l (lo tlus thing, it is dm11
for me; and if I do not, 1 sl~all11ot escape your 11nnds. I
cl~oosenot to do it and to [all into your hands, ratl~ertl1a11
to sin ill h e sight of the Lord." T11et1 S r ~ s a ~ cried
~ n a out
with s loud voice, and the h\.o cltlers shouted against her.
Anti one of them ran and opened the gardell
doors. \\'Ilea the I~ouseholdsetwnts I m r d tile shouting
in the garden, they mshed in at the sitle door to see what
11ad happened to l m h i ml~ellthe elders told their tale,
the s e l w t s were greatly asl~amed,for l~otl~ing
like flus
had ever heen said about Susatma.
The itch1 (la): when the people gathered at the
lluuse of her lh~~sband
Joakim, the hvo elders came, fi~U
of tlleir wicked plot to h:we Snsanna pot to death They
said before the people, "Send for Sr~sanoa,the d ; o ~ & t r
of Ililkiah, who is the wife of Joaki~ll." So t l ~ sent
y for
her. i h d she came, with 11er parents, lher cl~iltlren,and ;lU
lher kindred.
U.S.' SUPREME
COURT
PREWhTlNG DEPBNDAiW FROM BhTElUh'G HIS H O W WHILE COPS GOT
SEARCH WARMKT WAS NOT hTH AMENDMENT VIOLATION: IIhWOIS v.
McMZHZR,No. 99-1132, Celt. to Appellate Court of Illinois, Fourth District (304 111.
App. 3d 395, 713 N. E. 2d 93), Reversed &Remanded, 2120101;Opinion: Breyer;
Dissent: Stwens
Bemuse cops had probable muse to believe that MeArthur had marijuana
hidden in his home (his wife told them that he "had dope UI there"), they prevented
hfrom entering unaccompanied by an officer for about two hours wide they got a
search warlint. Inside they found d n ~ gparaphernalia and marijuana Oess than 2.5
gas, a Class "C3).McArthur was arrested and charged wit11 misdemeanor possession
of those items. He moved to suppress on gronnd the evidence was the "hit" of an
unlawful police seizure, naiuely, tbe refusal to let him reenter his home unacconlpanied. State trial couf agreed ;u~dgranted the motion, aud the state appellate c o ~ ~ r t
afEnued.
DECISIONS
REPORT
SDR for April 2001
Held: Given the natnre of the intrusion add the law enforcement
interest at stake, the brief seizore of the premises was permissihle under
the Powtb Amendment. 4(11 Amendment's centr;ll requirement is one of reasonableness. Altho~igh,h the ordina~ycase, persoltll propeft).seizures are unreasonable
unless by warrant, there are exceptions to this rule im~olvingspecial law enforcement
needs, dimimshed expectations of privzcy, minimal k~trusions,and the like. The circumstances hen involve a plausible claim of specially pressing or urgent law enforcenleut need. Moreover, the restmiit at issue was tailored to that need, bekg limited in
fine and scope, and avoiding sign~ficmtintrusioi~iuto the home itselt Conscqnenily,
nther than employing a per se ivle of unreasooahlcness, Conrt nmst balance the pfivaq-related and law enforcement-related concerns to determine if tbe intimion here
was reasonable. In light of the following circumstances, considered in combination,
Court concludes that the restriction was reasonable, and hence lawful. Pmt, police had
probable canse to believe that McArthor's home contained cvideace of a crime and
unlawful dnigs. Second, they had good reason to fear hat, unless mtrained, he would
destroy the drugs before they could retu~nwit11 a wvarrant. Third, they made reasonable elIorts to reconcile their law enforcement needs wit11 the demands of personal pdvacy by avoidmg a warmtless ently or arrest md preveotiug h1cArthur only kom
cnteriug his home unaccompanied. Fou~fh,they imposed tl~erestmint for a lin~ited
period, wliicl~w~as
no longer thai reasonably necessa~yfor tbem, actingwith diligence,
to obtain the warrant Court points out that in no case 11% it ever held unlawfula temporal). seizure that was supported by probable cause and \wm designed to prevent the
loss of e\ideuce while police diligently obtained amantnt in a reasonable period.
Stevens Dissent: The offense here was a class "G" nusdemea~or,which
it~dicatesthat the state of IUi~toisdoesn't con side^ it a nuljor public policy concern.
"Becaose the govelnmental interest implicated by the particular criminal prohibition
at issue in this case is so slight, Illis IS a poor vehicle for probing the boundaries of tbe
governmeut's power to limit an individual's possessory interest in his or her home
pendmg the atiival of a searchwarrant," The wit of cert. should be either dismissed
as i~nprovidentlygranted, or illinos court's decision grautii~gsuppression motion
should be &rmcd.
%ARCH: JONBS K UNITED flXilB, No. 99-11235,1/22/01
Officers had infonnatioa that drugs were being sold at a particular apartment. After observing someone kviug the apaaiuent, MIIOadmitted she went there to
by drugs, cops went to the apartment to ideutify thcoccupants. As they approached the
door, they obsened a handgun resting on a kitchen table. The gun was
secured, and one of the occupants was asked whetl~erhe had a felony
conviction. After he ad~luttedhe did, he was placed under arrest. hl a
motion to suppress, defendant argued ofice~screated the exigent ciscmnstallces by approaching the apartment. Court l~oldsofficers have a
right to lu~ockmd talk. They were justitied in doing so becn~rsethey ~vere
not certah at the time that occupants wese engaged in cdninal activity
Since they had a right to be tl~ere,and the gcm was in plain view the
search was propel: As for the questioning, Court 6nds any error was
l~aln~less
because defendant's crinunal record mould 11avc been disco\,ered anyway
NOTICE OF APPEAL: UNITED S T m S I! I W , NO. 00-500609,
01/26/01
This is a unique case, wl~ichdemonstrates why yo11 must be
famil~trwith the rules of appellate procedure. Defendant was tried and
filed an appliconvicted, and her appeal \\#asai3rmed. She s~~bsequently
cation for writ of habeas c o q ~ ~alleging
s,
in part that her lawyer was ineffective i n not raising cermin clain~s.District court granted that portion of
the application, m d allowed her an out of time appeal. She Gled a notice
of appeal, and the qoestion is whether it was premature: what must tile
district court do ml~enon out of lisle appeal is g~xnted.Court l~oldsthe
original judgment and sentence should be reinstated, and notice of
appeal is dtre wittin 10 days of the dale tlm is done. Since district court
had not done that the appeal was premature, Court also found the notice
was not effective to apped the portion of the judgment denying the application for writ of habeas co~pusbecause tile notice of appeal indicated it
nrasfrom the j~~tlgrnm
and senteace, and not fron~tl~ecourt order on the
writ application.
lower court decision. The focus is on wl~etherthe decision is reasonable.
CONCURRENT SENTBNCES: UNIZELJ S l M B S I! J I c D O W , No.
00-20045, 2/12/01
the11
Defendant wzs contacted by a co~lfidentialinforn~a~~t,
agreed to sell her drugs. She walked across the street, and rehnrled with
12 gnnls of crack cocaine which were delivered to undercover officen.
She was subsequently convicted for both possessio~lwith intent to distribute crack cocdne, and distribution of crack cocaine. Concurrent sentences were imposed, wl~ichCourt holds was error because the offenses
merged. Court also finds it has jurisdiction to consider the claim, c w
though no objection was n~atle.There \va additional punishment by way
of the mandato~ymessment in the second conviction.
TRAFFIC SI'OPS: ONITeO S T m S I! R F W T E , No. 99-60684,
1/17/01
narcotics,
Officers suspected the defeedmt was tra~~spo~ling
and pulled in to follom kim. While they were belh~dhini, because they
noticed defendant looking UI his rear view mirror sererd limes and weaving across the divider line, cops stopped Iiim for c~relessdriviq. Court
npholds conslitutioodity of the Mississippi careless driving statute. Court
also holds the stop was lawful, s u r e there \asan objective basis for
doing so. They note that the case is a close one, since it is possible Illat
officers actions caused defendant to commit the traffic offense. Iu a dissent by Judge Stewart, he holds that the State cannot create probable
cause by tailgating a motorist, m d that is \\hat he felt happened in this
case.
GROUPING: UNITED S T m S T! SAtTER, No. 99-40245,2/02/01
INEFFECTIVE ASSISTANCE - STANDARD OF REVIEW: NEAL I!
P U C W , No. 99-60511, 1/18/01
This is a significant case both for \\hit the Cowl holds as to the
ineffective assistance claim, as well as the standard of reriew. The claim
was tbat counsel was ineffective in fading to dexlop and present nutigating evidence. At trial, the defendant's moth~rtestified about his i~pbringing and difficulties. A psyclliatrist also testified that he was mildly retarded, suffered from an organic bnvio syvhome, ;tnd suffered tiom psycltosexual confi~sion llabeas counsel developed additional evidence concerrurlg defei~d:mt'saphrieging, 1vhic11essentislly est:tblisl~erll ~ mts
e an
abandoned cllild. They also presented evidence regartling his stay in :I
l~omefor set;~rded child re^^ :led a ~ ~ ~ r ninstih~tion,
~ral
which included
statements from employees \she had beMendet1 the defendwt. Evidence
~ gstay in prison establisl~edhe was systematically
presented c o n c m ~ his
aimset1 because of lus condition. Comt finds the f d u r e to present this
additional evidence was ineffective assistance. Court ernpl~asizedthat
most of tile evidence was easily attainable, either tllrough records or
phone calls. Ho\rre\,er,that was not sufficieot to cntitle the defendant to
relief. Court esanh~esthe recent Supreme Court decision in IVillinn?sos.
ql'lor, aud stresses tl~ata Court must do Inlore than find the lows court
decision was incorrect. Here Court makes that deternunation but does
not find llle decision unreasonable. The lower court relied on other evidence establislung essentially the same facts, and concludetl tl~eadditional evidence would not have changed the outcome. In addressing tl~c
standard of revie\\: the Court also atldl~sseswhat deferem should he
given to his state court decision which is lacking in reasoning.
Disagreeing wit11 the se1mt11circuit, the coclrt finds tlmt is not controlling. The same standard of reriew is applied no matter 11om extensive the
Defendant was convicted of money laundering and conspiracy
The goideline range for the
to possess nith intent to distribute nla~ij~mt~a.
v because the h~ndswere the pronloney laundering offenseIRIS increased
ceeds of illegal activity Court holds tlint s i ~ ~ tile
c e drug trafficking offense
was considered a specific offense cl~aracteristicforthe money laundering
ch;~rge,they sl~ouldl l a ~ cbeen gro~~ped.
Coml also addresses whether a
cowiction for tas evasion sho111d ha e been counted separately tiom a
comiction forpossessjon with intent to distribute. Court holds the offeases should have been considered ;LF part of a conmon scheme or p1a11
b e c a w defendant would not have had the funds l~adit not been for his
drug trntficking activit).
INVESTIGATORY STOPS: UNITED STATBS I! GUERR.?RO-BAR4lAS,
No. 99-41208
1/19/01
Border patrol agents vere contlucting a rovins border p;drol.
They obsewetl the defenda~t'scar pass by t~~veling
at a norn~alrate of
speed. The car mas riding low in the back and had benvily tinted V ~ I dows \\Vl~enthey h~rnedto follo~r~
them the car slowed down and began
to wave from side to side, They the11 made an iwcstigatol)' stop and
and a number of illegal aliens as they attempted
apprehended defentla~~t
to flee. Defendat11 cl~allengedthe search, arguing that otiicers had no
probable cause to stop him. Court recognizes Illat since the stop was
will~onta \vanant, tile govermilent had the burden of proving it \\,as constitutional. They opl~oldthe stop based on totality of circun~stances,mluch
included these factom: (1) it was late at night; (2) near the border; and
(3) agents had arrested persons tnnsporting illegal aliens in that area
before following stop of low riding vehicles. Judge Dennis dissents,
did not support a stop. The niere facl
believing tliat the circunista~~ces
they were on a road frequenlly used for illegal activity was not sofficient.
Also, here was no support for testimony that lawful travel at the tinie and
place was infrequent. He fuaher rejected reliance on the fact that the
vehicle was riding low As for the vehicle weaving, that could be nothing
more tl!an cliecking on whoever was behind him.
PUBLISHED ORDER
STATE PROSECLTJNG A'ITORNEY AND DISTRICT A'ITORNBY MAY
NOT BOTH FILE PDRS: EX PARTB PHILIP DANIEL TAYLOR,No.
0652-00, on SPA'S & DA's PDR's tiom Brazos County; Disposition: DXs
PDR ordered received as amicus brief only, 2/28/01; Published Order:
Per Cu~iam(plurdity decision); Dissent: Keller, joined by Keasler &
Holcomb;Jolmson & Henry not participating.
SPA and Bmos County DA both filed PDR's challenging COXs
decision versing the trial court's denial of habeas corpus relief. On its
own motion, CCA ordered briefing from the parties on the question of
wliether both the SPA and the Dl\ should be allowed to file PDR's on
behalf of the State.
Held: Controlling statutes permit only one petition for
discretionary review to b e filed by the State, a PDR filed by the
state prosecuting altorrley is the petition of the State, and submissions front other officials will be receirwl in assistance of the
SPA'S PDR. CGI relies primarily on TU: Govt Con6 $9 42.001 and
42.005, which provide not ody that the SPA has the duty to represent the
State in all proceedings before the CCA, it also establishes the authority of
DKs and county attorneys. "A district attorney or county attorlicy may
assist the state ptosecuting attorney m representing the state before the
court of crinunal appeals." Mer a brief analysis, CCArejects all the DXs
arguments and holds that w h e ~the~ SPA files a PDR, the elected DA may
not also He one. On the other hand. if the SPA decides not to file a PDR.
then the DA niayfile one. CCA notes that bec;u~scAppellmtsmay not have
"hybrid" representation ou appeal (Appellant
and counsel may not both
-present independent points tom appellate court)), 11"s rule must also
apply to the Stale. Because the SPA has filed a PDR in this cause, the DXs
ody authority is to assist the SPA, and have his coasidered as an micus
curiae brief. [***Note: Xeither PDR has been gnntedin this case.]
Keller Dissent: TCCP 2.10 authorizes theDAto represent the
State on appeal, which extends to PDRB, regardless of what the SPA does.
Also, "dual" represenlalion has been the practice for many yean, and the
kgi~hhwehasn't done anything to change it.
PDR OPINIONS
TRIAL COURT'S DISMISSAL OF PROSECUTION "IVITH PRFJUDICE" 7VAS A VOID ORDER: State u. CILU(LES SEDEL, JR,No.
1790-99, State's PDR Gvn~Guadalupc County; Reversed, 2/28/01;
Offense: D\W, Trial Court Disposition: Disnussed; COk ARivmed (2///524
- S ~ Ihitosio
I
1999); Opinion: Holland, joined by Price, Keasler, HenZey
8rHolcon1b; Dissent: Wonlack, joined by Keller & hleyers; Dissent:
Johnson
Appellee was arrested for felony DW and released on a felony
bond, but because tlieDA did not indict or fileanidormation, the district
court g~mtedhis motion to disnuss uader TCCP 32.10 (the "Speedy Mal
Act"). The prosecution and bail were dismissed with prejudice. The
State d ~ dnot appeal, but uistead, the County Attorney Hed a con~plaint
and informatine charging Appellee with nusdenieanor D\Vl. Appellee
fled a special plea of collateral estoppel, and a pret~ialhabeas application, which was gmited. County court held that because the prosecution
was dmissed with prejudice, the State could not refile a lesser charge
stenming horn the sane transaction, The State appealed, asserting the
countycourt abusedih discretion in gmting habeas relief. COA agreed,
but because the State did not a p p d the d~stdctcourt's disn~issalof the
felony, this complamt was waived. State's PDR was gmited to determine
whether the State had lo appeal, or wliether the trial court's order was
void, thereby subjectingit to attack at any time.
Held: The trial court's dismissal of the prosecution with
prejudice was not authorized by law and was, therefore, void.
CCA agrees with Cot\ that trial court had jurisdiction to dismiss the felony
w "lield to bail for his appearance
under Art. 32.01 bemuse Appellee w
to answer any c~iminalaccusation before the district court." Moreover,
the trial court had authority to dismiss the prosecution beuuse under
kt. 32.01, if an indictment or inforn~ationis not presented against the
accused withli the presc~ibedtime, the stahlte perniits the judge to disnuss the case without the State's consent. Howwe$ TCCP 28.061, which
fornmly authorized dismissal with prejudice, was amended effective
5/6/97, and no Longer applies to a dischacge under Art. 32.01. Tlns,
even if the defendant was entitled to a discharge under 32.01, he is not
free from subsequent prosecution. Because Appellee was arrested after
this arnendnlent beca~neeffective, it applies to him, making the trial
CCA goes on to hold that
court's dismissal with prejudice unautl~o~ized.
the order of dis~nissalwith prejudice is void, and cat1 be atlacked on
direct appeal or collaterally attacked. Therefore, the State's failure to
a p p d the district courl's disnussal did not conslihte a wiver. Judgnient
is reversed, and case is remanded to COA for "proceedings consistent
with this opinion."
Worsack Dissent: The precedent relied on by the m3jority
does not support its holding tliat the judgment was rendered void. J x k
of authority does not render a judgment void, dthough CCI has niistakenly said so more than once. The order of dis~~lissal
was lint made witliout jurisdicaon, snd there is no other reason to regard it as void. Hid
the State ircised the ermr on appeal, it luiglit h a x won. Ilowe~~er,
its failure to appeal was a waiwr, and CO& decision was correct.
Johnson Dissent: \Vllen the trial court exceeds its authority
by dismissing with prejudice (but still having jurisdiction), the dismissal
is not void, but voidable. Tlius, tile State should haw appealed the dismissal and should not now be allowed to attackit i n cou~itycouut.
HAZING STATUTE HELD CONSI?WTtONAL: State u. DUSTYHUGH
BOYD G.JAWER ChWA, Nos. 2043-99 & 2044-99, State3sPDRs fro111
Brw.os Co1111ty;Reversed, 2/7/01; Offense: Faiiure to Repolt Hazing;
Trial Courl Disposition: Disnussed; COk tUfirnled (2///752
- Houston
1 1 4 ~1999);
~ 1 Opinion: Hervey (unaninious)
Appellees were charged with a Clm B niisderuea~~or
under
/I
,
Te\ E D C ~ O m
N ~$ ,37 152(a)(4), the sfatute that penalizes ffaiure to
report a hazing incident, and hazing and assault. Charges arose from a
single incident occurring on the Texas A&M campus. The Wid court dismissed the prosecution on motion that the statute was unconstihltiona~as
applied to Appellees. COA dllrnled, holding that the statute required
Appellees, on tbreat of prosecullon, to repol? informallon about activity
that they could leasonably believe would become available to prosecution
authorities, which would help establish their own guilt in the offenses of
hamg and assault. COA, relying on Marchefti, 390 U.S. 39,88 S.Ct. 697
(1968), held that compelled disclosureof such informationcreates a real
s l ~ dappreciable lisk of self-incrimination. State's PDR was granted to
determine whether the stah~teis unconstitutional as applied for violating
the 51' 1 Anlendnlent's pridege against self-incrimination.
Held: The statute is constitutional because its inununityprovlsion, TBx.Enumos CODE$37.155, is sufficient to remove
any real o r appreciable hazard of self-incrimination and to cnmpel reporting over a claim of privilege. Said provision provides Unt
immunity from prosecution may be grantedat discretion of the bid court
to anyoae who is subpoenaed to testify and who does teslifor the prosecution. It additionally provides that my person who repolts a specfic
hazing incident to the appropriate official of the Ulstih~tltionis inunune
fivnt civil or criminal liability that may othe~wisebe incurred as a result
extends to participation in any judicial proof the report. Also, i~nn~unity
ceeding resulting from the repoll, except tl~alaa)aae ic'ho reports in bad
faith is not protected by this section. Here, Appellees would have been
entitled to both use and deriv;\tive use immunity from civil and crinlinal
liability. Becal~ethe stah~te'sininnu~ityprovision removes any red risk
of self-incrimination to Appellees, COA's judgment is reversed and case is
remanded to trial court so h t they may answer the charges against them.
S T A W OF LIMITATIONS QUESTION NOT RIPE FOR REMEW: EX
?EVA DMW TMIEZ,Nos. 1857162-19, Appellant's PDR from
P
Port Bend County; Affirmed, 2114101; Offeuse: Perjury (6); Trial Court
Disposition: Relief Denied; COk A h ~ c d(41N854 - Houston [lstl
1999); Opinion: Johuson; Mele)ersconcurred d o opi~uon.
After being indicted for aggramtetl perjury ~ u ~ dTPC
e r g 37.03,
Appellant filed s h pretrial writ applications asserting the prosecutions
were barred by lii~tations.Specifically Appellant argued that the State's
reliance 011 TPC $ 17.06, wluch does not require the State to prove wluch
of the inconsistent statements she made were false, bwred prosecution.
made 011
Her $st statement, which she claims is the false one,
December 5, 1995, and was outside the Z-JT slah~tcof limhtions, 11111s
preventi~lgit from being an element of thc prosecution for the second
statement, made onDecen~ber2, 1997. COA first held it had iunsdictio~~
to address the claim under EI' Pff~teilfatll,eri~s,
873//40 (CCA 1994).
COA hen decided that the charges of agg~avatedperju~ywere witlhm the
2-pr stahlte even if the first inco~aislentslatement was not CCAgmnted
PDR to determine wl~etherCOA "erred in (Ic~~ying
appellant's writ of
habeas corpus 011the ggronds thxt prosecution is barred by [the] applicable stah~teof limitations."
Held: The issue of lin~itationsimplicated by this case is
not jet ripe for consideration CG\ first agees that Appellant could
raise tins clalm on a pretrid writ becac~seshe zmerts the ~ndictmeut,on
its face shows the offe~isemas barred by hn~itationsEx Parte Dickson,
54911202 (CU 1977). Honever, once COA had deternk~edthat the
applicable statute for agg~avatedpej u ~ ywas 2 yn, and that the second
cl~argeddate was within tl~estatute, it was appropriate to go no forther.
Only the face of the pleading is considered to determine whether relief
should be granted, and here, the varions indictments show the date of
offe~~se
as December 2, 1997. Because the indictment was rehlrned on
September 14, 1998, a date less than two years after the alleged date of
the offense, the pleading on 16 face, docs not show thm the charged
offense was barred by limihtions T~IIS,Appellant is not entitled to relief,
and COA's judgment is atfirmed
[***in a footnote, CU expressed a wlh~gnessto address this
issue in the futule: "How the limitations periods for perjuly and aggw
vated p e ~ j u ~interact
y
with g 37.06 is an open question, a11d one hat
desems consideration at the appropriate time However, given the procedural posture of the instant case (i.e., a pretrial application h r writ of
habeas corpus), aud the dates alleged on the face of the indictment, it is
not yet time to decide thal issue UI this case, md denial of habeas corpus
relief 1s appropriate."]
CASE RBhfANDED TO RECONSIDER DEADLY WEAPON ISSUE:'&?a
A N / E O Y BAILBY u. State, No. 370-00, State's PDR from Wba'lon
County; Vacated & Remanded, 2/14/01; Offense:Assault; Seutm~ce.
(not in opinion); COA. AfFrn~edas Reformed, and Remanded for New
Punislm~entIlearing (7/1/721 - Corpus Cl~risti,1999); Opimon: Per
Cu~ian~
(wmimous)
Appellant was convicted of aggramted assault with a deadly
weapon by a jury, wI1ic11found he had threatened and repeatedly beaten
described as a "board or a "stick." On
his wife with a piece of
appeal, he a ~ ~ a ethed evidence nns insufticient to support the deadly
weapon hdimg. COA agreed, holding that because there was no evidence
Appellant intended to muse serious bodily inju~yasdefined by tl~esmtute,
therewas no evidence that, as used, the object was capable of inflicting
se~iousbodily inju~ynecessaLy to suppoi? a dmdly wapon finding and
on aggnvated assault coeviction.
Held: Judgment is vacated, and w e is remanded to
COA for reconsideration of the deadly weapon question in light
of McCnin, 22///497 (CCA 2000). Here, CONS fococtrs was on TPC $
1 07(a) (17) (B), which dcfines a deadly weapon as "aqthing that in the
manner ofits use or intended use is capable of causing death or serious
bodily injury" COA reasoned that bemnse the evideuce showed that
Appellant's intended use was to beat tl~evictim on one side of her body to
w extellt capable of ~ I I I S Uonly
I ~ bruising, It was not lus intent to cause
anything other than the injuries ach~allyinflicted. In ilIcC2ri11, CCA
explahed U~atsaid statute's p1a1 lmguage does not require the actor to
actually intend death or serious bodily injury Because the statute cantmv the word "mpable" its placement there enables the stmute to c o w
conduct that threatens deadly force, even if the actor has no intention of
achlally using deadly force. In 11lcCai11.CW also e\plained its rationde
in T~OIII~S,
82111616 (CCA 1991) (~eliedon by COA), which it chamterizes as a bit misleading because &st glance it appew as thou~ghCCA
agrees that the statute's focus is on the actor's intent when it said that
"objects are not dmdllly n7exponsunles'~actually used or intended to bc
used m such a way as to muse death or serious bodily inju~y[.l"
Ilowever, in illcCuin CCA also sajs that a closer rmding of Tho~nos
revals that it did d~scussthe Stahlte's inclusion of "capable." Because
COA did not h a ~ the
e bene8t ofdlcCdin w11en it banded down its deasion,
judgment is vacated and case is remanded to tl~atcourt for reconsidemlion in light ofMcCriin.
[****Note: Recall that U~~lfcCairt,
the defendant had a butcher
knife sticking out of his pocket wlule he was bmling up the \<ctim. He
1 WWW.TCDbA.COM I
VOICE FOR THE DEFENSE
1 311
D m - DRlYEWAY NOT PUBLIC PLACE FOIYLBR F? SZATE,No. 0700-0081-CR,1/3/01
juvenile upon arrest. Issue is currently pending in the CCA in a case styled
Gonzales v. State.
d
COA declines to hold that an unpaved driveway of a l u ~ residence located one fou1~11of a mile from a county road in an isolated and
secluded area of a county as a public place and orders an acquittal in a
DWl case. Closest people u'ere 8 miles away COA holds that a private
driveway of a residence is not a public place. Further, entrance to tllis
driveway was gated and thus, not accessible to public.
PRETRIAL WAIVBR OF M E & . I W W S V STATB, No. 04-00.
COU4TERAI. ESTOPPEL: WAPBR Y: STATE, No. 07-00-0265-CR,
1/3/01
00405-CR,1/10/01
A pretdal waiver of the light to a p p d will be held d i d if: (I)
the right to a p p d has not yet mah~red;(2) the defendant h o w s with
certainty the punishment he is to receive, md;(3) he could anticipate the
type of errors that might occur during fbe proceedings. \%at is essential
to this holding is hat the waiver be made part of the plea bargah.
IN\71NTORY SEARCH: YAWS i! SZWE, No. 06-99-00139-CR,
1/9/01
Defendant wins on a motion to revoke; trial court Elnds evidence of new offense allegation insufficient.This finding triggers collateral estoppel a i d state is precluded from litigating indictment alleging
that sanie offense.
Uh'KNOWN MANNER & MEANS: IVHEELBR Y: $CAI& NO. 06-9900057-CR,12/5/00
COA notes, without deciding, that State may not any longer
need to prove, when alleging that the mmmer and means of XI offense are
unknown, that the grand july did. not in fact h ~ o wthe manner and menns
a i d yet exercised due diligence to ascertain the correct facts. COA
resolves issue nithout addressing this problen~.
DISABLED JUROR: Clt4VEZ I!flATE,No. 07-99-0379-CR,
12/7/00
COA holds that TCCP 36.29(c) is mandato~y;the ju~ymust be
discha~gedif, after the ju~yinstmctions are read, a juror becomes too ill
to continue and the parties do not agree to proceed with eleven jurors.
COA rejects trial court lationale which argued that, because jurors had
decided an a verdict, one had thus heell rendered, wliclb would have
allowed the w'erdict to be accepted if all eleven remdning juro~shad
signed it. Vefdict is not rendered until 11mided down in open cou~z.
MANDATORY LIFE SBhTENCE FOR CERTAIN SEX OFFENDERS:
PRICB K flATB, No. 10-99-181-CR,
12/6/00
As of 1998, anyone convicted of certain enun~e~ated
sexual
offe~~ses,
sexual assault, agg. sexual assault, kidnapping with Intent to
conu~utsexual assault, etc., and wbo has two priors for either sexual
assault or a g p w t e d sexual assault, or s o m e t l ~ ~very
g similar from
another state, faces a1 atitonlatic Me sentence, even if the hvo p i o n are
, 1011s.
not h a [ convictions, 1.e. deferred adjud~mt'
COMMERCIAL BRIBERY: ADBGBeNRO Y: flATE,No. 01-00-00419.
Before there slay be a lawful inveato~ythere n~ustbe a lawful
impoundnient of the vehicle. Though CCA has held that an impoundment
is not la\\hl merely because the defendant is under wrest and there is no
one inmediately avaitable to take control of the car, see Stephen,
677//42,COA here upl~oldsthe impoundment because there was no OIE
immediatelyavailable to take control o w the car,
APPEAL APIlIR REVOCATION OF DEFERRED: l&4MIRBZV SZHE,
No. 10-98-349-CR,
1/10/01
This is a complicated opinion dealing with the COA's judsdiclion to hear appeals &er revocation of a deferred adjudication. Under
illnr~rml,994//658,defendants nwust appeal aU iss11es after deferred is
assessed or issue is wvaiwd COA here acknowledges problen~swith such
a broad holding nlien faced with so-called jurisdictional isues but
decides snch issues must be 1;u'sed by ~aeansof a writ of habeas co~pus.
See also Sflkndo,No. 01-00-00861-CR,
1/25/01 where COA holds it has
no jurisdiction to hear a p p d and cites to Dadel, 30///407 which
refused to hear a p p d where court reporter's notes were nussuig and
migbt have suppo~zcda challenge to orighd plea's voluntarh~ess,
['**Editor's note: illflr~~~al,
when it was decided, cited to
TVhetstone, 786//361,363(CCA 1990) ubich held that the issue was not
one of jurisdiction but one of justiciability. There z e celtain issues, normally considered jurisdictional but in realility considered to be of basic
fundan~entalhnpo~Tance,that were not \vaived if not raised on a p p d
fro111 the assessnlent of probation. nlis same stmdard should apply to
dcfei~edsas well but may not. Basically, if the issue is one that can he
irrised in a post conviction wit, it is one that can be raised on an appeal
from a motion to revoke.
DEADLY WEAPON FINDING: ADMZE K S T i , No. 10-99-139-CR,
1/10/01
For aBB gun to be considereda deadly xrapon,evidence must
show it was loaded at tin~eof offense.
CR,1/4/01
Defendant convicted of conmercid bribeq Because 11e was
charged with agreeing to confer a benefit, the indictn~entneed not allege
an agreement to commit the offense.
The Mentioned above ere synopses of opinions ofthe appeals courts listed
JLIVBN1J.E CONFESSION SUPPRESSED: PIIAiN K SX'B, No. 01-99.
00631-CR,12/28/00
We inviteall comments end consiruc6ve ci~cismfromourmembersandVOlCEofthedefensereadars
Confession ordered suppressed because police failed to notitj
defendant's parents of their son's arrest pron~ptlywhere defendant was a
Significant Decisions Reportwas reported by
Cynlhia LHamplon. Editor- Mike Chariton,Assistant Editor
".
PLEASE EMAIL OR FAX
D' Ann Johnson -TCOLAExecubve Director# djohnson@tcdlacam -512.469.9101
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The SPRb printing cost is funded byThe Judicial & CourlTraining Fund end
administered bytheTexas Court of Criminal Appeals
Like thc storied Pirates of Penlance, modern police often feel
the need to approach a suspect's residence nithout m~ouncu~g
their
presence or intentions. Wllile the United States Supreme Comt has not yet
held that the officers m s t cty out "la1~1taiil,tamntalx?' 2 befofe bashii~gUI doors to execute mrmnts, it 11s
held that the comnloll law
requirenlent to knock on the suspect's door ~vivitl~
somelhing less than a
sledge l~anuuerand announce their presence and autho~ityis pan of the
question of whether they have reasonably exercised their rights to search
the suspect's Imne pursoant to awvarmt. So far, no defendant has had a
conviction overhnned in Texas due to t11e fdure of the police to comply
with the "knock a ~ annou~~ce"mle.
d
Nationally the results are hardlyany
beltel: Wl~llethere is an argument that tlus is due to the mherent reloctame af judges to enforce the lule, it is also probably as n~uchIhe fault
of trialattorneysto properly present the issne to the trial court. The purpose of this article is to renew the u~lde~piunings
of the "knock and
announce" rule as articulated by the United States Supreme Conrt, its
Texas md federal stah~lo~y
corollaries, and the Texas rules ofprese~~ation of error on appeal with an eye towards assisting trial attorney; in
clearly presenting the issue to the appellate cou~Ts.
The Common Law Knock and Announce Rule
v
"
tie" 3, Plior to breaking open any door, the common lam, as de eloped in
England before the h m h g of the United States Constitution, demanded
that an officer of the law kt announce his presence and autl~ority*.
\Vllile this doctrlne found xceptmce inhnerican jurispi~~dence
5, it was
nut until the 1W s tl~cL'nitel Scates Supren~cCt~urtr ~ c o g ~ ~tl~at
i ~ cthe
d
kluw of RII i~lli~t'r
to "knoch :ud an~~uunce"
n ~"i r ? in~s;tct
l ~ ~ a "I~CWIIableness" inqniiy under the search and seiznre plwisions of the Fouilh
Amendment to United States ~anstih~holl~
In 1ViIsm v. Arkansas 7 police officels, who werc executing
search and arrest warrants for drugs, did not announce their presence
before opening =I unlocked screen door and entering the premises The
United States Supreme Court held that the conunon law "knock aid
announce7'piinciple - i e., announcing the police preseilce before ently
-was pall of tlw reasonableness mqui~yunder the Fourth Amendment's
guarantee against unreasonable searches and seidures. The Court recognired, however, that the conlmon law principle had not been extended
conclusively to felonies andleft it to the lower cou~fsto determine the circumstances under which an una~~nouuced
entiy was reasonable under
the Fourth Amendment 8
L
Subsequently, in R~CIKIMS
u 1Visco11sirr9, the Supre~neCou~t
recognized that several state cou& had tmdiuortally petmttted police
searching a home for narcotics to enter wthout adhering to the knock
and mnounce principle
W~sconsfilhad a statute permitting wannounced "hard" entries in all d~ugcases. The Court held that the Poultl~
Amendment did not allow a blanket exception lo the knockand mounce
princ~plefor felauydrug investigations.The reasonableness of IIICfailure
of the police to enter without annou~~cing
tl~en~sclves
would be determined on a case by case basis. In order to justify a no knock entiy, police
ruust hme reasonable susp~cionfrom the pnrticular ciicu~~~stances
that
knocking aud mounch~gtheir presence woultl be dangerous or h~l~lc,
or that it would inhibit the elfectise inwtigation of the crime, such as by
allo~vingdestruction of evidence. " A higher standard does not apply
where the no knock cntq justified by rcasonnble suspicion, results io the
destiuction of propertyJ2
This is not a new concept. The Supiwe Court has long held
tlrnt a search wlucl~is reasonable at incepli~~
may violate Foinlh
Amendment by its intensity and/or scope. '3 Tem court's have reacted
suuilarly l4
Further, there have been botbfedcid and Texas statutes wl~ich
purport to control "harcl" entries to euecite a warlmt. I5 Given this long
histo~yof consiitutional, conunon law and stanltory protection, coupled
with a clear preference by law eniorcenmt office13 for hard entries,
are there so few instances of convictions being reversed where there are
so many \varrants being executed without benefit of knocka~d;mnounce?
The essence of the protections against law euforcernent nusconduct is based upon the principle tl~atthe fede~aland slate constitutions protect one against unreasonable searcl~esmd seizures. That being
the case, the issue at trial and on a p p d must be whether the conduct of
the oflcen was utrremahle. mile a bard entry without any prior
amouncenleutmay well beunr~wnablcto some, it appeals that it is not
geneldy considered ul1peasonable to tl~ejudges on the various appellate
courts. In order to prevail on these claims it is incumbent upon hid
counsel to articulate why the prticular h a d entry at issue was rinreasona6le. This, it appears, is significantly haider that it would first appear.
nveu when it is established that the actions of law enfo~cementofficersin
~nakinga hard entty was unreasoi~able,r e v e d i s anytl~iugbut assured.
Texas Cases
Long before the Sup~en~e
Coint handed down eill~erWilson or
Richards, the Texas Coud of Criminal Appeals held that the failure to
knock aud amounce was p a t of the reeaonable~~ess
i~~quhy
as a nlancr
of Texas law yet tbat conlt has ne'er rewsed a conviction for a faiiure to
knock and announce. AU analysis by the Court of Criminal Appds has
concluded that the foiced enhy under review was 'reasonable" under the
facts presented. In AfcCown u Stale '4 the Coun rejected a challenge to
the reasonahlencss of an officers forced entry to executed a \\ilmnt noting as follo\s:
Officer Hightower of the Houston police
testified that, wide avn~edwith a search wmt and
in canlpanywith other ofken, he weld to a certain
address in the city; that the other office~swaited at
the front wlule he walked down the sldcw& at the
side of the apartment house, kom where he was
announcement, and that a reviewing court must consider counte~ailing
law enforcement interests in determining whether an entry was reasonable. Specifically, the Court Iield that an unmiouuced ently niay be justified if officeshave reason to believe evidence will likely be destroyed if
advance notice is given. Fustlier, an unannounced entry may likewise be
justitled if a suspect's awareness of the search would increase the danger
to police officers or othen, citing a Seventh Circuit opinion. 34
In the case before the Dallas court, it found the actions of the
officers reasonable on tlie basis of trial testin~onythat the police office~s
entered he house to execute a searcli warlnnt for cocaine. Nthougli the
officers broke down the dooq they shouted "police" as they did so. Trial
testimony provided hroreasons for the "uiiannounced" enty Fist, sucli
an enhy was necessary for the police officers' own protection. Second,
the manlier of entry wvm necessary to secure the illegal drugs that are the
subject of the search warmnt. Officers testified that if they knocked and
announced, it would iiot only be very dangerous, but it would also give
the suspects an opportunity to secrete the drugs or flush them dowm the
toilet. 35 This testimony was deemed to establish the "reasonableness"of
the officer's actions.
In auother case the Dallas Court of Appeals rejected a challenge to the reasonableness of the forced eutly into an apallment because
the Court found that tlie evidence siniply showed appellant was present at
the apartment when the cocaine was found and seized 36. There was no
proof that the defendant lived at the apactment or proof othe~wiseshowing the defendant had a subjective expectation of privacy iu the preudses
that society was prepared to recognize as objectively reasonable.
Accordingly, the h i d court was held to have propexly overruled the defendiu~t'?111ntin11to S I I P ~ W S S'I'i~cr~.
.
\\:Ls no pauticulnr dizcuwinn or :cl~:tlysis ultl~eknuck R I I ~~ I ~ I O I I I I ~CI ~I I' P 1'11~
Cull11,irn~>l\,r ~ l w tl~c
d :!nncd
on the basis of established expectation of privacy concepts.
The Fort Worth Court of Appeals considered tlie knock aid
announce l?de in the context of a 42 U.S.C. g 1983 civil ~iglitsaction
against police officer 37. The conipldnant in that case alleged that the
arresting officer used excessive force in entering resideuce illegally aid
in shooting the arrestee after the arrestee failed to comply with officer's
order to get onto floox, and instead pointed handgun at officer's chest.
The trial court 38 denied the officer's motion for partial sunmaly judgment based upon Ius assertion of quaJi!ied inimunity. The police officer
appealed. The Cou~lof Appeals held tliat: (1) fede~d,lather than state,
law governed the case, and (2) it was objectively reasonable for an officer to assume that occupants of house wexe sufficiently app~isedof his
identity a i d pulyose for ently.
The coniplaiuaut contended that the "custom inipleniented by
the City of \Vicl~itaFdls is for officers to break dowu tl~edoor upon their
arrival", relying upon the testimony of a police officer at Carlisle's criniinal trial. \ V h asked why police nsed battering mns, the officer
responded as follows:
"hwith most places that I've lmd dealings wih where illegal drugs are dealt, the people in
there are a h i d that the police are going to catch
B~eni,a i d they constantly niake plans on how to
keep from being caught. One of them being using
lookouts. One of them being grab the stash aid
flush it if you see the police coming. And time is of
the essence to not ody obtain the evidence, but it's
also i~npo~tant
to us on sonie places to use the element of surprise in order to sdeguard the officers
and the evidence that would be there."
&
,
A L
The officer tlien stated that the police didn't "just go up aid hiock 011 the
door" to prarent the dcstruct~onof evidence and to safeguard tl~emselves.
While recoguizing the United States Supreme Court has held
tliat the comnlon law "knock and amounce" principle form p a ~of
t tlie
reasonableness inqui~y,citing IWson u, Brkfoism, the Court held that
since the officer had beeu warned that the occupauts of the house could
pose a serious danger to police officers and that the office~sfeared
destruction of the evidence, the policy described by Wicbita Falls police
officials and followed by the officer in flus instance was objectively reasonable.
Texas Knock and Announce Statute
It should be noted that Wisconsin was not the only state to
authorize for law enforcement officers to make unanuounced "hard"
entries 39. While the Wisconsin legislature sought to create a blanket
exception to the requirement to kuock and miounce before making
forced enhies ui drug cases, tlie Texas Legislature took a different
approach: lather than grant a blanket exception to the mle, it created a
blanket prohibition to onamiounced entries unless tl~ereare exceptional
circun~stances. The Texas Code of Criminal Procedure 40 provides
express autliority for an officer to break down a door to make a felony
arrest "if he be refused admittance after givingnotice of Ids autho~ityaid
purpose." A plah reading of this stahlte would give the casual reader the
mipression that an officer in Texas can onb break down a door to niake
an arest alter kuocking a ~ mnou~ichig
d
his "authority and puqose" A
casual reader would, howe\~er,be wrong as this provision was read out of
existence by the Texas Court of Criminal Appeals in 1978 in the case of
Jones u. State 41, when tlie Court lield as follou~s
'are can percei\,e of no reason why lioncompliance with the formal requisites of an arrest '
should render illegal that arrest wlien non-con~pliance with the fornial requisites of a searcliOdoesnot
render illegal that search. We therefore hold that the
non-complianceDdoes not render an arrest illegal."
Nohvitl~standingtlie clear intent of the Texas legislature, law enforcenient
oficem are apparently fsee to ignore lids statutoq pmlubition without
fear that the subsequent arrest will be held illegal 42.
Application of Exclusionary Rule
Tliere is still, howeve5 tlie question ofwl~atto do with any evidence seized during a hard enhy and subsequent search \v11icl1does not
coniply with Art. 15.25. Texas 11as codified the esclusionay rule as Tes.
Code Cri~i.Proc. Ann. art. 38.23, wluch provides as followvs:
(a) No evidence obtained by an oficer or
other pesson in violation of any provisions of the
Constitution or laws of the State of Texas, or of the
Constih~tionor laws of the United States of An~erica,
shall be admitted in evidence against the accused on
the h i d of my cCLi~idcase. hi any case where the
legal evidence raises an issue hereunder, the ju~y
shall be h~shnctedthat ii it believes, or has a reasonable doubt, that the evidence was obtained in
violation of the provisions of ills Article, then and in
suc11 event, the juiy shall disregard any such evidence so obtained.
(b) It is a11esception to tlie provisions of
Subsection (a) of this Article Illat the exidence was
obtained by a law enforcen~entofficer acting in
objective good faith relia~ceupon a war~antissued
by a u e u t ~ dmagistmte based on probable cause.
The Texas Court of C d n ~ i aAppeals
l
11s held Illat "[Tlhe terms of [CCP
alt. 38.231 are n~andato~y
.... \'iolation of a State statute or co~~stih~tional
provision in obtaining evidence requi~essuppression of that evidence
under tht. 38.23, supra; a judge has no discretion in n~lingon the excln-
sion of that evidence." 43 Presun~ably,\\Me the arrest \vould not be considered "illegal' \here Art. 15.25 is violated, ally euidence seized as a
result of such an ently woould be obtined in violation of Art. 15.25 and
tluus subject to esch~sionbased upon the pro\risionsof Art 38.23. 44
So fal; only one Texas interuediate appellate court has square1 addressed this issue, albeit in unpublished opinions. InNoses u. St&
t11e Houston's 14~"Court of Appeals opined that "I1111 Jones, however, h e court of c r i ~ ~appeals
~ ~ a l~eld
l that the failure to comply wit11 articles 15.25 and 15.26 of the Code of C ~ i n ~Procedure
~al
did not render
the defendant's arrest illegal. Id. at 848. Therefore, the failure of the officers to awlounce their perpose before entering the habitntion n w l d not
render my evidence seized inadnlissible." Obviously tile Court is cornparing apples to oranges, i.e., the legality of the arrest vs. legalit). of the
search. That Cou~talso totdy fdled to factor iu the provisions of art.
38.23. This case demonstntes the relative difficult). in establisl~ing
resersible e r a r on the basis of a violation of art. 15.25.
Perl~apsAloses can be expldned on the basis of an earlier
~rnpnblislred case from h e sanle court, Pifts n State 4 wilere the
IIouston Court held that Article 15.25 refers to tl~eexecution of an arrest
\varw~tand has no application to the esecntion of a search cl,\rwr:~nt.
The
court opined that hticle 18.06(b) 47 controls the execution of search
waruaots and that as it rnakes no reference in any \my or alanner to
wl~etherpolice need to knock or ;u~~~oonce
tlleir presence in the execution of a search warm1 a violation of that pro\rision does not necessitate
esclusio~~
of the evidence seized duru~ga hard entq for purposes of execllting a search vrarrant.
UlIforh~llate~yfor the Houston Court's analysis, the article
15.25 doesn't n~entiol~
ii~nrrn~ifs
at all. Specifically art. 15.25 provides i n
its totalit).tlrat "[Iln c;w of felon): tlre officer may brez~kdown the door
of any house for the purpose of 1nm1~1g
an arrest, if he be reh~sedadmittance after giving llotice of his authority m d purpose." It appeals that art.
15.25 ~ o u l dapply lo any effort lo effechlale an arrest, regartlless of
wl~etherthe arrest is hued on a wurant or on one of tlle immerous
exceptio~~s
to the \irarmnt requirement. One o~ustalso wonder \\hat the
outcon~ewould be for a combined search and arrest ~ ~ a r r a na tcolnmoll
,
pmctice ill Texas?
In ~leill~er
case did ll~eHouston Court of Appeals consider the
hohliogs ofKichr(1s or IYilsorr, perhaps because the issue sin~plyn;lst~'t
raised $ trial or appellate counsel \v110 apparently chose to rely on the
Texas statuto~-yprovision iaslead of the federal connnon ILW rule.
At least i n Houston's 14l1l Court of i\ppeals, article 15.25
appean to be a dead letter As for tl~eotl~er13 Texas intemlediate appel1:ne courts, the authors would respecth~llysuggest th:a standard rules of
code co~~struction
49 mould seem to imply that tl~eplaiu language of article 38.23b) \irouldapply \&re article 15.25 is violated To
4;
Federal Knock and Announce Statute
Like Texas, the federal govenlment long ago enacted a statute
:tinred 211 regul:cting forced e11t1-yto execute a rrarl:mt. Specific;tll): 18
U.S.C.A. 3 3109 provides as follo~vs:
3 3109. Breaking doors or windo\vs for
entry or exit. The officer may break open any outer
or inner door or windo\\' of a house, or any part of
:I house, or a~qll~ing
therein, to esecute a smrcli
warrant, if, after~roticeof Iris aothosi~yand purpose,
l ~ ise reh~sedadnuaa~~ce
or \\.hen necessaq to liberate l~in~self
or a person aiding 11in1ill the eseclltion
of the warrant.
In tile years this statute has been i n force, there llave been numerous
instances \v11ere defendants l~aveclrauenged the \~iolalionof this stahlle.
Few l~avesucceeded. In construing tl~isstatute, however, the federd
courts haw interpreted it as having an exigent circl~~ustances
prong and,
as long as tl~eactions of the officer \\we reciso~mblemder tile particl~lw
circr~msl?nces,they have upl~eldconvictions where violations of tl~e
stntute have been foltnd. The si~nilarit).re%o~rable~~ess
p r o q of the federal ssr;ltute to tl~econmon law knock and announce rule articulated in
Richards and IVilsov makes consideration of these holdings instmctive
for any attorney seeking to show that a violation of the common law
knock and announce rule was "unreasonable" under the ci~'cumsrances
presented.
The following is a circuit-by-circuitlist of cases decided under
this statute wl~icl~
den~o~~strates
how little evidence is apparently required
to cstablisl~that the officers acted "reasonabl)?' wllcn they perfor~neda
hard ently for purposes of executing a warrant:
DC Circuit
Uizited Stntes u. Sprigs 5'. Drug Enforcen~entAgency (DEA) agents did
not ict unreasonably in entering ap:~rtmentafter knocking and announcing tl~en~selves
only once in slightly above normal tone of voice at 7:45
a.m. on weekrhy Agents esecutu~gsearcli w;lrmt were justified in concluding tlrat they had been constructively ref~~serl
adnrittmce when occupants of d\veh~gfailed to respond witl~in15 seconds of mnouncen~ent.
United Stcites 11, Ro~rrze~.
5=. Eleven to hvelve-second intend behveen
time police officers announced their presence and tin~ethey rantsled
door do~\~n
l d d to be reasonable. Court Ileld that wl~ereofficers could
reasonably have expected that they were entering into a den of drxg tmfficke~s,w11ere officers twice gave clear notice of tl~eira~~thorit).
and purpose, and where officers heard sounds consistent with destn~ctionof evidence.
Uni1t.n'States 11.James 53. Tlre E1i1ur.eof police to stale putpose before
entering defendant's l~ousedid not invalidate search and subseqt~ent
seizure of cocaine. Police testied tl~atafter knocking and announcing
their m~tl~ority
repmtedly witl~out eliciting any response, they llearil
sonleone nlnning down back stairs and reasonably inte~yretedsuch
sounds as indication tllat inhabitants were ;wwof purpose of police visit
and were moring to destroy evidence. Requirenlent of f e d e ~ dknock-andaonounce statute for police officer in executing se;tsch ~~~asrallt
to state
his al~tl~ority
and purpose was satisfied by o£ficer w11o merely stated
"police, nlrcotics," since, by s q i t ~ g"narcotics," oHicer made l u ~ o w ~
pulyose of his visit in lnlanner understandable to i~lhabitants.
First Circuit
U~~itedStates
u. O m Pflrcel ofRefllPro)ert~l5*. Officer w110 knocked at
back door waited only five to ten seconds hefore entering was acting reasonably where other officc~smere banging on front door and shouting
"police" before the ofiicer reaclled back door and the officer llad probable cause to belieire tl~atoccuparrts possessed coc;dne.
Second Circuit
U~zitedStafesu. .pimlli 55. Police officers' failr~reto follow !mock and
announceslahtte iq esecoting search warrant for llarcotics defendant's
11on1c was justified by exigent circumstances. The office~s'belief that the
defenda~~t
rvas armed and cl;~ogerous,supported by the rlefeirdant:~pre~ ~ i o \wapons
us
co~lviction,as \veU 2
s the flammable and dolent llahlre of
~ ~ ~ e t l ~ a ~ ~ ~ pwl~ich
l ~ e rthe
a orlefe~~dant
~ i ~ ~ e , was believed to 11ave been producing in tile home, justified tl~enonco~opli:o~ce,even tl~ougllofficers
mere unn\vare ol lurock and annouoce stahlle.
Third Circuit
I
UnitedStutes u. StiwJ6. State police officers executing search wamnt
acted reasonably, as required by Fourth Amend~nent,when they broke
dowu door of defendant's apartment after knocking and announcing theit
presence. The officers reasonably believed that the defendant was
involved in the drug trade and drugs or other evidence could be readily
destroyed if entry was delayed. Additionally, the officers testified that they
heard heavy and hurried foot steps leading away from door when they
announced their presence.
UnitedStates u. &ne57. Officers who had leanled that an extensivedrug
manufacturing opention was taking place in a house, that there were at
least four people in house and that they had a number of weapons, had
reason to believe that an announcement would place them in unwarranted peril. The officels' noncon~pliancewith knock and announce statute
was justiEed by exigent circumstances
United States u. Singleton J? A detective knocked on the defendant's
door and was obsenzed by one defendant who knew detective to be state
narcotics officer. There was refusal to open the dool; followed by "shuffling of feet" inside the apartment. The court held that an announcement
of purpose and autholitywould have been a useless gesture and may have
enllanced possibility of destmction of contraband heroin suspected to be
in the apartment.
eels to \rail before entering drug a defendant's apartment after lu~ockiug
and m~ouncingtheir presence. The Court concluded (without evident i a l ~support) that a longer wait might well have resulted in destruction
of evidence.
United Stntes u. Cfn'ter a. Exigent circurustances justiGed dmg agent's
failure to cornply with statute authorizingforced ently to execute a search
uTIarrantif the officer is denied adnuttance after notice of authority and
purpose where an individual jumped off t~ailerdoorstep when he saw
officers approach Additiotlally, when an agent, who yelled "She~itrs
Department with awawnt," reached trailer don$ which was slightly ajar,
he heard someone inside yell, "It's the cops," and heard people running
from the door. The agent again announced that he had a warrant. The
agent testified he was concer~~ed
about possible destruction of evidence,
namely heroin.
United States u. SqnelIa-Auendnno 64. Seizure of narcotics was not
invalidated when an agent opened an unlocked door after announcing
"Police. Open the door." The Court held that the agents had not properly announced their purpose in demanding adnkion, but that they were
justified ie being virtually certain that the occupants knew their purpose
in that, inter aliu, the agents knew that violation of the narcotics laws was
being perpetrated inside in the dwelling, that theit sun~eillancehad been
detected, and, following knock, hurried movement and the sound of
Fourth Circuit
..
"
their presence and purpose uz11e11 attempting forcible ently of Cauhl's
home.)
UnitedStates u. ward59. Finding that 60-second ~ e r i o dthat officers executing search warrant waited after knocking a n d ~ a ~ n o u a ctheir
in~ p m e m at defendaut's residence and forcibly entering home was reasonable.
Sixth Circuit
Unitedsfdm u. Grogins 64 Police had reasonable suspicion that knocking and announcu~gtheir presence prior to enteriug suspected "stash
house" for executiou of search w a r w t would be dangerous, futile, or
would inhibit their investigation. The Court's holding was based on evidence that suspected drug dealer who frequented dwelling and used it as
stash house would visit dwelling that night and that police could not
locate suspected dealer elsewhere. The court held that police officers
could folm reasonable suspicion that knocking and annouacing their
presence prior to entering suspected "stash house" for execution of
search warrmt would be dangerous, be futile, o r inhibit investigation,
regardless of likelihood of presence of the suspected drug d d e r at preconnection between illegal drug operations a d guns.
UnitedStates u. Kennedy 61. Office~s'failed to wait for explicit refusal
of admittance or lapse of significant amount of time before breakinginto
the premises. The Court relied on exigent and dangerous circumstances,
namely that the officers needed to act quickly to prevent destruction of
dmgs and the officers had reason to fear that people inside house would
be armed and dangerous. The Court held that strict con~pliance the
statute \'auld be imprudent and officers satisfied principal values embodied in the statute by knocking on door and iuforiuiug occupauts of their
authority by yelling "police" seve~dtin~esbefore they broke d o w ~the
door.
Fifth Circuit
UtritedStates u. Jones 62. Under common law "knock and announce"
ride, 15 to 20 seconds was reasonable length of tune for state police offi-
UnitedStates u. Spikes 6 Aperiod of 15 to 30 seconds from the initial
use of a police bulhom to announce their prese~~ce
with a search warrant until the office~sentered the home wa a reasonableanlount of time,
so as to comply with "knock m d announce" rule under the Fourth
hendn~ent.The officers were searching for dmgs and were a w m that
there were persons ingde the residence that might destroy such evidence.
The officers were w m e d that uelsolls inside might
" have uolice scamine
equipment, guns and armed guards. The officers executed the warmt
during the n~iddleof the morning when most people are awake, and use
of buUhorn was so effective at alerting people inside that neighbors had
already exited their homes to obsewe the execution of the warrant before
the police entered. While the Court held that the sin~plepresence of dmgs
alone does not justify abandoning the "knock and announce" rule for
execution of a search wvarlmt, or so diluting its i-equirements that it
becomes a meaningless gesture. The Court also held that presence of
dmgs in the place to be searched, while not a conclusive factor, lessens
the length of time law enforceruent mmt ordinarily wait outside before
entering a residence.
-
agents' forced ently of
United States u. i\'Rbors 64 Jaw e~lforcen~ent
defendant's apartnlent seconds after aru~ouncingtheir presence was reasonable
there \pas a threat to their own safety due to fact that the
defendant was afelon in possession of array of fireanus, the officen were
worried about the safety of those in apartment, aud there was a need to
present ~larcoticsevidence.
"
UnitedStates u. Ciainrnitti
Agents were justi6ed h concludi~~g
that
a SIIII~III~IISwas being ignored, when, after they pounded on front door
of house and announced the^ authorityand p u p s e for executing search
warrant, they heard no response f m n ~within house for 30 seconds, at
least under circumstances where oallly facts known to the agents who
began to break door down were that two males had been seen carrying
chemicals and equipment into Iiouse, lights were on in basement h o n ~
wl~ichdmg-related odors l~ademanated on previous lughts, and the
agents heard sound of breaking glass at side of house.
Seventh Circuit
U~~itedStntes
u. illnttiso~~
68. Exigent circon~sl;usesjustified issu~nceof
no-knock search \\'arrant, authorizing searcl~of defendant's house. A n
informant had told police that the defendm nas UI possessio~~
of crack
cocaine and 11adstated 11e was in possession of a \\'npos and tllreatened
to kill anyone mho inte~feredwith lus d ~ x gsales. The police 11ad been
Informed h a t other occupants of house were gmg nlembers, were
armed, m d had a Iustoly of violence.
United Stntes u. Xniiq 69. Police officels had a reasonable belief that
evidence \vould be destroyed by tlw occupa~~ls
of a residence wluch
escused !mock-and-an~ouncerequirement for executing search \ ~ m " n t
at the residence. Tl~e11oldi11g w s baed on inoeement the office~sheard
coming from inside l~omeand the officers' prior lu~owledgethat occupants kept drugs in their mou111in order to s\r~do\vt11en1if approached
by police.
U~ritedS t ~ ~ t11.
e sS t o w 70. Esigent circu~l~stances
edst when the defendant's anareness of a smrch would increase danger to police officers or
othels, \ h e n d111gs or firearms are regularly obse~vedillside a tlefeildant's rerirlence, or when inloomation Imds police to reaonably conclude tint defendant is arnled, dangerous, and possesses large amou~~ls
of cocaine.
U~literlStotes u B~~lrcklel7.' E ~ if police
I
officers did not knock and
announce their presence prior to entering the defe~~(lants'
mobile Ilo~re
\vide esccuting mar~antauthorizing search for drugs, exigent circumstances justified no-knock ent~l:\&re the officers knew hat the defendants possessed a pit-bull and firearms.
U~~itedSffltes
u. Sorin 7'. Police officer's breaking do\w of a dnlg suspect's front door wit11 sletlge hanullel; siniultaoeous wit1 an announcement of "police officers, search rrarrant" did not ~~iolate
Fourll~
Amendn~cnlknock and aulounce rule. I1 could be seen tl~rougl~
pulled
drapery that house was occupied, there 11ad been 110response to lalocking on side door of l~ouse,and there was reason to believe suspect \\'as
arn~ed.
Ur~iterlSt~~tes
u. Honnrd 73. Exigent circr~mstancesjustified execution of
search \varraot with forced entq and in disregard of federal stahltoly
"knock and announce" requirement, wllere the officer h w d n~o\~en~ent
in apartment at tinie oflus knock, and the oKicer [lad prior lu~owledgeof
the defendant's s d e of illegd drugs and possession and use of firearm
The Cowl l~eldtl~attile movement the ol6ce1xl~eardcould 11aveindicated either tllat police were in persond danger or hat illegd dregs were
being destroyed.
OitiledStntes u. Si~tger 74. E~&cnt circumstm~cesi~atifiedpolice 01%
celr;' no-knock ent~fofa narcotics suspect's residen& to ese& searcl~
\varmnt. In seekine no-lalock nen~ussionfrom a state i n k the officen
had testified abouitl~epossibiity Illat drngs would be'de&yed if ent~y
\\'as delayed. They dso teslified about frequent use of \\,capons by drug
dealers in geneml, and, although it predated seizure hy sonle sis months,
tlie anonymous tip tl~atIrad led to the searcl~l~adindicated that the suspect was involved witl~guns and 11admade threats. The agents waited for
tiye to ten seconds after knocking before breaking down the dool: Tl~e
Court l~eldtllat their actions were reasonable inasmuch a agents atleq~filtelynotified the occupants of agem' authoritg and pulpose, tl~e
agents 11eard movenlent bel~inddaor after knocking, ~ n dtile agents
feared for their safety because of the highly flanunable a d tosic chenucals inr.olve11i n rnetlmn~pl~etanrine
production.
U. S. u. A'oreikis 75. Specid agents of Bureau of Karcotics and Dangerous
Drugs arriwl at the defendant's IIOIIIC with smrch \varrant at approsimately 11:30p. nl. Vken the agents arrived, the defendants were still up,
so the agents waited outside until house became completely dark at about
nidnigl~t.Once the house was qniet, the agents knocked on door, ~ n d
ud1e11 door was uot answered within minute kicked door in. Tl~ecoul't
l~eldthat the agents reasonably concluded that they Ilad been "refused
adnuttam" w l m they broke down doors
Eighth Circuit
Uuitetl Stotes u Ontes '7 Tl~edefendant's actions, such as breaking
bedroom window and tl~rowingbag of crack cocine outside, col~firn~ed
his awareness that the police had entered the residence, and the police,
having been informed that defendant m d xcon~plicepossessed firearms,
kicked ill bedroo111door only after seeing a light under door and Ilearing
n~ovemeutinside.
UuitedSlntes u. Goodson 77. Forcible entry into a house did not violate
the conmo~~-law
knock-and-announce requirement w11ere the officers
waited 20 seconds after !mocking 1011dly and announcing the officers'
presence and purpose. The actions were considered reasamble, considering the size of the house, wl~icll\\.;tsa o n e - s t o ~ ~ ~ xhouse,
n c h the potelltid tllat the residents could nus11 crack cocai~edown a toilet, and fact
that a resident had a record for ;lssault with a deadly weapon.
United States u. Ilon~kirrs 74 No-knock entry to esecnte warrant to
search drug suspect's home was reasonable in ligla of the undisputed testimony that the house WIS barricaded by barred security doors and windows.
U~ritedSt&s I , 111cht 79 Officers were const~~~ctirely
refused admittam at homes of a dtxg defendants, since the possibility \\,as slight tlmt
the defendants did not hear the officers or could not haw responded
promptly if they had desired to do so. Tile defendants' 11011seswere small,
tile defe~~dants
were awake, tl~erewas probable cause to helieye that the
defendants possessed inarcotics, and tlie officers mailed 20 seconds for
response. Additiorally, the officers knew that the defendant 11ad completed a drug transaction witl~inhours before the search, he llnd a Iuding
place for drugs wluch 11e considered undetectable, he liked the elemted
locatioli of his l~omeso he could suwey the sorrountlings, weapons llad
been f o ~ u ~indllis hotre on two pre\Sous searches, and he 11ad nlotion
detector outside Ilonle.
United Stntes u. Bflker 80. lo\n la\\'permits no-knock search warrants.
The officers 11ad encountered a barricaded front door \\'hen executing a
prior \\.arrant, a ~ l dtile i~lformantsw11o made co~~trolled
buys leadu~glo
the warrant reported that the front daor had been rebarricaded and tlm
two dogs were inside.
It is reasol~ablefor police officers to assume
U~ritedStfltesI , dfoore
that sospects selling illegd drugs UI ssmd quantities from a residence tl~at
Itas eorlnal plun~bingfacilities will attenlpl to destroy those drugs if officers knock before searcl~narrant is executed.
UnitedSfnfes 11. Troq a? Oficers esecuting warrant to search duplex
for d q s mere justified in failing to annollnce tl~eirpulyose after Iu~ocking and identit)ing tl~eniselvesand before breaking do\w doors by the
fact that announcing their purpose would llave been a useless geshlre
where officershiew that the duplex 11adbeen referred to as drug house,
the officers believed that the duplex WLSfortified and tl~arthe defendants
were nionitoring the area around the duplex, and tile oaice~sknew that
an undercover drug transaction 11ad occurred that day ii~volvingcocaine
from the duples.
tion of evidence or escape may u,eU demonstrate an
exigency, mere unspecific fears about those possibilities wlll not. Were they enough, the knock and
announce statute would have been judicially amended to exclude virtually all narcotics-based cases. It
has not been.
Yet each of the concerns alleged in this
case is of just that nature For example, the police
had no information that methamphekmh~elaboratoly was then being opeIraledon Becker's premises. Indeed, given the fact that his associates' homes
had been searched two months ea~.lierand that he
had been questioned by p'olice, hewonld have been
exceedingly foolhardy if h~ had still bee11 operating
a laborxtory at that site at that time. The police had
been on the premises but hadnever seen or smelled
one there, and the last cook they knew about had
taken place at Becker's home in November, 1988.
Yet, one of the expressed fears was that Becker
might have an active laboratory and that those wen!
sometimes boobpapped. As it turned out, life followed logic; Becker had no operating methamphetamine lab. Rather, he had, if anything, attempted to
destroy all'evideuce of the lab long before the raid
ever took place. Of cou e, we recognize that what
was dis~o\~aed
later is not relevant to assessing
police activity at the time of the ently. We mention it
only to empilasize the fact that the clahned f m was
simply a generalized and non- specific one
4
i
Also, although there was no specificinformalion that Becker IanseII was armed or &mgerom, the oRlcns decided
that he might be. l\vo
v
month earlier the police had se~vedwarrants at lus
associates' homes. Proper knock and announce
notice was given and the searches took place without incident Howe er,guns were found. That is far
from showing an exigency regardi~igMc Bccker, a
person who was then 42 years of age and had, to all
appearances, led alau- abiding, even exemplary, life
up until this series of incidents.
None of this describes even a mild exigu~cy,much l e s a11exigency juMyii~ghrcaking into
a f m i l y home twly one nlonling wi~huutcompl)ing
dl11 lhe simple :hd ancient requirenlem 1 I ~ the
t
t~llic~r
"oud~t
" to sienikti~e
" , ~ o s ofc his comine.
" anti
tonlake request to open doors" before he breaks in.
114,
In another case, OizifedStrifes u. FIuk~~er
'15, a substa~~tid
poriion of the gnvenlnlwl's w c consislerl of tiidence arcll~iretl~ i ~ ~ rai n g
seardl of lhe ailartnvnts of aoorllanls Y O I I I I :ud
~ Mukec I'rior lo irial.
the district co& denied appEiants' motions to snppress the evidence
obtained dndngthe searches 116.The defendant appealed~ru'inga 11un1ber of issues involving the correctnessof the district court's ruling on the
motions to suppress. SpeciGcally they a p e d that the n~etl~od
ie which
thc search warmt was executedviohted 18 U.S.C 8 3109 "7.
llte evidence at trial showed that federal agents obtained a
senucl~w a r ~ non
t the basis of info~mationgiven to them by an u~fo~mant
"8. The agents approached the conlmon doorway at flie bottom of the
staus and forced it openwithoutany annomlcement '9. After kicldng the
conlmon doomy in, thc agents were at the door to Young's apattment,
which the district contt found was at least pattially open '20. The agenls
then announced themselves and ordered the occupants of the apartment
to fi.eezevirhlally~imllltan~ou~ly
with their enhyinto tlie a p d e n t itself
lZ1.Dndng the searcll, a quantity of narcotics was found Iz2.
The Ninth Circuit held that no evidence had been cded to the
Court's attention wluch would support a suspicion that the narcotics
allegedlyin the apartment were in the process of being destroyed; on the
contraty, the informant's report was that the inhabitants were in the
process of cuning the heroin and prqa~ingit for distribution, and there
was no indicatio~that they were expecting the anid of h g enforcement agents 123, Nor d ~ da ~ ofy the searching officers testify that they
heard any sounds of running feet or other suspicious activityfrom d u n
Young's apartment, beyond the door
The government also contended that under Ninth Circuit law
compliance wit11 5 3109 is excused when that complimlce might alert a
suspect and incrme the officer's peril, citing Gilbert u. United Stnta~
125.111reviewing this contention the Court concluded that the suspect in
Gilbert sought by the police du~ingtheir search was beheved to have shot
and N e d a police oacer dul.inga bank robbery that same mortllng Iz6.
Here, by contrwt, the evidence revealed at ttllal that one of the persons
suspected by theDEA agents to bc in Young's apartment on the day of the
search owned a gun was simply not suftlcient; it was clew that Stone had
apermit for the meapon and there was no evidence thathe had ever been
convicted of illegal possession of firearms or of use of kkear.n~slu the
conunissionof a crime 127. The Court held that file mere fact that he possessed a guu camlot bemd to have reasonably supported a belief that he
was armed at the time of the search ox that he constih~teda threat to the
office~s'safety '28.
In Unitedstates u. Lucht 129 several men~be~s
of the Omha
Chapter of the Hell's Angels Motorcycle Club were convicted in the United
States District Court for the Dist~ictof Ncbmska of consphq to dist~ibute methan~phetanline'so. Search warmlts uwe executed sinn~ltaneously at owly all of the defendants' homes at 7 00 a.m., October 17, 1990.
On appeal seven of the defe~~dants
challenge the district court's denid of
their n~otionsto suppress evidence seized in the searches '3l.
The Eighth Circuit Court of Appeals concluded that the disttict
court's findings supporled the court's conclnsio~~
that officers had been
constructively refused admittance at the homes of defei~dmtsRodney
Rumsey,Kemethlucht, and Sandra Volkir '32. With respect toVolldr ald
Rmnsey, the court fouud that theirlmnses were small, fhc occupants were
awake, there was probable cause to believeVokir a11d Rulnsey possessed
narcotics, and the officer% waited hvcn.cntyseconds for a response after
knocking and annouucing their p ~ w e ~and
~ c epurpose 133. The Court of
Appeds held that in these circl~mshncesthe possibili~ywas slight that the
defendants did not hear or could not have responded promptly, if iu fact
they had desired to do so 134.
I11 Lucht's case, the court fonnd that his house urassmall, the
officers knocked loudly on the door and announced their presence and
purpose '35, The officers bad probable cause to believe 1.ucht possessed
narcotics, and the office~swaited hventy-he to sixty seco~~ds
for a
response 136. Altllough the officers heard nothing to indicate Lncht was
awake, they testified that they were aware that he was on parole and,
therefore, especially sensitive to a knock aud amom~cementfor a search
3 Althoough Lucl~targues that mere silence m o t be construed as
access denied, The court of Appeals ejected that augc~mentnoting that
mxly if ever is there an afBrmafive refusal. "More oiten the officers meet
with silence as the occupants seek to destroy evidence or escape."
The court, therefore, concluded that the officers' condwt con~pliedwith
$ 3109 '39.
The district court found that, although office~sannounced their
presence and purpose at the homes of defendantsApkes Dale Ray Haley,
and Maiyke, tlqdid not wait long enough to ulferrefusal ofadmittance
I4O. Thc district court concluded, hourever, that exigent circumstances
excc~sedthe othenvise improper ent~iesand refi~sedto suppress the
seized evidence 141.
cun~sla~ces
to obviate the obligation to respect the federal knock and
amounce statute
.@
' I Holding that tl~eactions of tI~eoffice~sin failing to
follow the dictates of § 3109 were unreasonable, the Court reversed aud
remanded tl~ecause '81.
take a concerted effort and diligent advocacy at the trial level to establish
that a defendant's home or dwelling, 5 which he has both a property
interest and a light of privacy, has been the subject of an u~easonable
"no knock" ently in violation of the defendant's constin~tiondand stahltory rights before any question of a remedy is even reached.
Burden of Proof and Persuasion
Application of the Exclusionary Rule
A challenge to the reasonableness of a no knock ently to exe-
cute a warmlt is not a hopeless cause. Thc success or failure of such a
challenge ltinges on the development of the facts in the tlid court to show
that the action of the office~sin executing a no-knock forcible ently was
unreasonable under the unique facts and circumsta~~ces
of each case.
This places the burden on trial counsel to make a sufficient showing of
unrmonableness to entitle tl~eaccused to relief.
Clearly, the question ofmho has the burden of proof, and what
that burden is, will be of pa~xn~ount
importance. While traditional 1111es
suggest that where the Statdgovernn~entis relying on exigent circumstances to support their actio~~s
they haw the burden of proof ISL. Yet
where an accused challenges the reaso~~ahleness
of any action by a law
enforceme~~t
officer i implenenting andlor execuling a smcl~krrest
Does the sl~owu~g
of an unreasonable enfly into tl~ehome
invoke the exclusioncuy rule? R is by now well established that all evidence seized in violation of the federal constitution is inadmissible. I97
How this doctrb~eimpacts OII
ently without a prior knock and
a~~nouncements
is by no means cleal: In I V h the argument was made
that the remedy of suppression should not be imposed because the evidence seized nsascasually disconnected h o n ~any constihltiollal violation
The Com't noted that this argument nras
of an una~ouncedentq!
made in the mnici briefs, but the Court declined to address it. '99
In a pre- 1~lsou/Richflrdscase, U~ritedStlrtes u. Rnmierez
*@J,
the Supreme Court again noted that there was an issue as to wl~ether
"there was sufficientcasual relationship behveen the braking of the wln-
seeks lo exclude evidence on the basis of a Fou~ll~
hnendme~~t
~iolation,
the burden of proof is on the defendant. Is4 The defendant nmst produce
evidence that defeats the presumption of proper police co~~duct
and
thereby shift the burden of shoving that the ofice~sacted reasonably
uuder the ckcomstalms to the State. '85
Atst, of course, the accused mllst show that the police failed to
knock and amounce their preseoce and pulpose before making their
ently Proof of UI unannounced hard enhywiu probably not shift the burden to the prosect~tionin Texas state courts 186. Counsel must be prepared to go fonvard nil11 additional evidence and a~gu~nents
concer~ting
the piu.ticular ci'cumsla~lcesof the case at issue.
Next, counsel must be prepared to show that the actions of the
office~s\\ere, m~derthe particular circumstaoces, "unrmonable". Tlus
means that the defendant will bear the burden of presellting evidence that
there xerc no exige~gelttcircumst;u~cesthat would support a deviation bom
the conlmon law requirement that an officer knock and annomlce his
authority and intc~~tions
before bashiug down the door Specific attentiall
should be addressed to the gene~xllizeedargunletlts ad\anced and rejected in Ut~itedStafesv. &/a, and U~zitedStatau. Becker. I87
Com~selsbould also be mindful of the specific presewation of
error 1r11esin Tesas. To present any complai~~t
for appellate revien: an
objection at tiial or 011 a motion to suppress must not only identify what
is objected to, but must also set forth s~ecificg r o . ~ ~ ~ ~ dFor
s . an issw
to be presenwl for re~iewupon appeal, the specific ground identified at
trial md presented to the trial judge for a ruling must be the same as the
ground alleged in a point of emor 011 appeal.
this regard, com~sel
lation of either the Fourd~Amendment or 18 U.S.C. $3109, the Coml
found no reason to consider the application of tlw esclusio~~a~y
rule.
Texas has a long Msto~yof applying its own statutoly exclusio118q 111le. Yet the G m t of Criminal Appeals has never excluded evidence on a violation of the knock and announce rule. In Johnson u.
Stflte,2" the Texas Court of C~imiualAppeals held that "the attenuation
doctru~eis appliplicable to hlicle 38.23's prohibition agai~steevidence
'obtained' in violatio~~
of the law because evidence sufficiently aftelmated
from theviolation of the law is not considered 'obtainec? therefrom." It
is reasooable to co~~clude
that in order to have the courts apply the exclusionaly mle to evide~~ce
seized after m~ u ~ r ~ s o n athe
b l failure
e
to knock
and announce it wouldfkst be necessary to shon~tl~at
evidence was seized
as a result of that violation. 111 order to premil, com~selshould be prepared to show how tile violatio~~
of the common law ktlock and amounce
rule, or for that nlatter art. 15.25, C.C.P., resulted in the office~s"obtaining" eridence illegally Otllenvise it may not matter if the police officers
executing a n7ar~xnt
crash the door down, kick the door down, shoot the
door down or bum the door don^^.
'91, 15.25 and 38.23 bIt11e exa as Code of ~rin~in;tl
procedure in addition
to presenlillg sufficient facts to shon' that the failure of the officcn to
knock and a ~ u ~ o u md
~ ~ cthat
e tltis fdure was uorezsonable under the
C~~CIIIIIS~~IIC~S.
y
Coutlsel n~ustbe prepared
to establish "standing" to contest
the officers' actions. 'g2 Stmdlding is based on property interest andreasonable expectation ofprivac '93 WWle inqui~yinto"stasding" has been
officially abandoned 194,the inquily now is whether defendant possessed
a legitimate expectation of privacy in the area searched, nluch is functionally the same as determining if the defendant has standing. h order
to nrevd. the accused has burden of shonu~ethat he had an iinterest in
theprope~~ty
sufficient to ellable him to compku of the law enforcen~ent
officer's inwsion of tl~atproperty '95. Counsel must be prepared to show
that the accused had a reasonable eqectatioa of privacy in tl~eplace
entered to complai~~
of whether enflywas reasonable I s . In short, it will
Conclusion
The knock and annoullce rule currently appears to be a right
without a remedy The U~utedStates Supreme Court has been unequivocal
in blessing the knock and anloonce rule in theo~ywhile nt the same time
refusing to specify wl~at,if any, relief a defendaut might apect under the
Fourth Amendment for aviolation of that mle. Texas law is uncharged territoq largely resulting form a dearth of published case law and an UICOIIsistent aonroach in addresine" these issnes hv theTexas Court of Criminal
Appeals. The plethora of drug cases in tl~ecrin~mdjustice s)Wm furtl~er
complicates the issue, since cou~lsappear to be w i h ~ to
g go to any length
to uphold a co~~victio~~
where drugs are involved. Firearms present even
Inore complicalio~~s,
since the presence of guns \\dldmost surely justify
a "hard" emly 011 the basis of presenPationof the officer's sdety h short,
courts appear predisposed to find either 110Fourth Amendment violatiot~
on the basis of "reasonableness" of the elltly or no h a m based on evdence discovered after the e r t Any
~ ~application of the esclusiona~yride,
either by the United States Supreme Co~~rt
or Texas courts, is a matter
suit Z O cold
~ , comfort to nu inmate doing 99"to life.'
"
Footnotes
191 (1998).
*
'3 See, e.g: Terry u. Olno, 392 U.S. 1, 88 S.Ct. 1868, 20 C.Ed.2d 889
B.A., University of Tesas at Anstin,J.D., 1977, University of Texas School
of Law. Mr. \Veaver is currently an Adjunct Professor of Law at Texas
Weslepi U~uversitySchool of Law, and also a Consulhg Attorney in
LhlIas, Tesas. He is a n~emberof the State Bars of illisso~~ri
and Te.~as,as
well as immerous federal district and appellate courts, ihcluding the
United States Supreme Court, mid has been Board Ce~lifiedin Criminal
Law by tlie StateBar of Tesas since 1983. Mr. Weaver is a fonner Assistant
Atto~ueyGenecxl (Enfo~~ement
Division), a former Assistant District
Attorney for Ddas County, and is retired from the U. S. Navy JAGC.
Pirates of Penzance, Sir \V. S. Gilbert, Act I1 (1879)
2 See Id
3 See 3 W. Blackstone, Con~mentaries288 (a man's liouse is "his castle
of defense and asylun~");Coke, third Institute, cap. 73 ('For a Alan's
h o w is his castle, e t dotnus sua cuique est tritissirrtrin~refrririm")
See Se)vr?a)~tle's Case, 5 Co. Rep. 91a, 91b, 77 Eiig. Rep. 194, 195
(K.B. 1603), wluch held tliat "when the King is a palv, the sheriff (if tlie
do015 be not open) may break h e parly's house, either to a l m t him, or
*
to rake request to open doon ..., for the law without a default in the
owner abhors the dest~uctionor breaking of any liouse (which is for the
habitation and safety of mm) by which great damage .and incotnwience
rnigl~tensue to the party, when no default is in lum; for perhaps he did
not !sow of the process, of wllich, if Ile had notice, it is to be presumed
tliat he would obey it ...." Id., 77 Eng. Rpt. at 195-196
5 Some states simply adopted English conuuon law in t l ~ absence
e
of specific statutes to the contlmy See N. J. Const. of 1776, $22, in 5 Federal
and State Co~istih~tiO~l~
2598 (E Thorpe ed. 1909) ("The common law of
England...sllall still ren~ai~i
in force, until lit1 s l ~ be
d altel-ed by afuture
law of h e Legislahlre"); N. Y. Const. of 1777, Art. 35, in id., at 2635
("ssc11 parts of the con~nron-lawof England... as... did form the law of
[New York 011 April 19,17751 sl~aUbe and contime the law of this state,
subject to such alterations and provisions as the legislature of flus State
shall, froni time to time, make concerning the same"); Ordinances of May
1776, ch. 5, $6, in 9 Statutes at Large of Vbginia 127 (W. Hening ed.
1821) ("the common law of England... shall be the 1111e of decision, and
s l ~ dbe
l c o n s t ~ ~ as
~ ehi
d full force, until the same shall be altered by the
legislative power of this colon^'). Other states enacted specific statutes
dealing with ently by police office13illto prlmte dnrehgs. See, for esample, Act ofNoK8,1782, c11.15, P6, in Acts and Laws of Alassaclnrsetts 193
(1872); Act of Apc 13, 1872, ch. 39, $3, in:1 Laws of the State of New
York 480 (1886); Act of June 24, 1782, ch. 317, $18, in Acts of the
General Assembly of New Jersey (1784) (reprinted in The Pint Iaws of
the State of New Jersey 293-294 0.Cushing, comp. 1981)); Act. of Dec.
23, 1780, ch. 925,S5, in 10 Statutes at large of Penns)hnia 255 0.
Micliwl and H. Flande~s,conip. 1904). Early court decisions dso recognized ihe c o t m o ~law
i knock and announce principle. Iltdker u. Fo.Y,
32 Ky 404, 405 (1834); Ri~rtonu. Wilkirrso~t,18 Vt.186,189 (1846);
fhe/l a KrtNe~PeId,58 hIm.302,305 (1849). Seege~~eml!~:Blakey,
The Ruie of Armoance~ne~tt
firid Un/arrfrrl Entry, 112 Un. Pa. I.. He!
499,504-508 (1964) (collecting cases)
U.S. CONST. AbLhEhTD. 4: Tlle right of the people to be secnre in their
pelsons, houses, papers, and effects, against tr~treaso~mble
searches
and seinwes, shall not be violated, and no Warrants s11d issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, m d the pelsons or tlungs to be
seized. (Eniphasis added)
514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)
1Vilso~u. Arkaltsas, 131 L.Ed. 2d at 983-984.
9550 US. 385,117S.Ct. 1416,137 Z.Ed2d615 (1997)
lo137L.EdZd 622, 1,. 1.
I' Richards u. IVisconsir?, 137 L.Ed.2d at 624.
l2UrritedStates 11. Rmneriz, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed. 2d
'
(1968) (Stop mid frisk); GO-BartI,r@orting u. UnitedStates, 282 U.S.
344, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (Jntensive and extensive search
of office.); Kre~rrertu. United Stntes, 353 US. 346, 77 S.Ct. 828, 1
hEd 2d 876 (1957) (Search of entire 11o11seincident to wrest.); Chime1
u. Colijbrxia, 395 U.S. 752, 89 S.Ct, 2034, 23 L.Ed.2d 685 (1969)
61
&ed &tes, 331 U.S. 145, 67 s i t . i098,
L . E ~ 1$$9
.
(1947)
(Search in envelope for forged checks not too intense.); 1'6arrfl u.
Ilii~~ois,
444 U.S. 85, 100 S.Ct. 338,62 L.Ed.2d 238 (1979) (Valid search
wanxnt to search premiscs and one named individual docs not autlioriac
the searcli of other persons on the prcnlises. Valid pat down under T ~ J ,
u. Ohio, 392 U.S. 1 (1968), n m t be based on a reasonable belief that the
person is armed and presently dangerous.); Michigan u. Srirmers, 452
U.S. 692, 101 S.Ct. 2587,69 L.Ed.2d 340 (1981) (Avalid searchwarrant
to search for contmband carries with it by in~plicationthe right to detain
occupants of the prenlises w11ile a proper search is conducted even iftl~ey
are outside the home. WIietlier same rule applies in searcli for evidence
not decided.); Arizona u. Hick, 480 U.S. 321, 107 S.Ct. 1149, 94
L.Ed.2d 347 (1987) (Officer propedy searching for one who fired a sliot
in a building, for vjctims and for weapmls, may not under tlie pplain view
doctrine mow stereo components, wlucl~tliey ody suspected to be
stolen, in order to read and record serid nnuibe~s.This constih~tedan
intnlsion not justified by the esigency authorizing the enty Could read
numbels if not necessay to move the i t e m Immediately apparent
requirement of the plain view doctrine to a111horir.e sein~rerequires
probable cause. Reasonable suspicion not enoug11.).
14Joseph u. State, 807 S.W.2d 303 (Tes. Crini. App. 1991)
5
' See I8 U.S.C. $3109 and Tex. Code Crim. Pmc. Ann. art. 15.25
(Vernon's 1967)
16338ST2d 732, 170 Tar. Crirn 142 (Te.v. Crim. App. 1960)
17Al~itezu.State, 461 S.\V.Zd 609 (Tea. Crim. App. 1970)
l8 Tes. Health & Safety Code $481.104
'9 See Id. at 612
20 See Id. at 612. Article 18.18, Verno~l'sAII~.C.C.~
was the predecessor
to the current Tes. Code Crim. Proc. h i , art. 15.25 (Vernon 1967) discussed i~fra
21~1fc~a~y
U. State, 477 S.K2d 624 (Tes. Crim. App. 1972)
22 See Id at 626
23 Ellerhee u. State, 631 S.Wd 480 (Tex. Crim. App. 1981). The holding in Elierhee regarding amending indictment superseded by constihltional aniendment, 1Vnrd u. Stnte, 804 S.\V.Zd 204 (Tes. App.-Tesarkana
1991), petition for discretionay revie\\, refused (Apr 24, 1991), review
witlidrawn (May 01, 1991), petition for discretionmy review gnnted
(May 01,1991), Judgmenrreversed, Wirdu. State, 829 S.\V.Zd 787 (Tes.
Crim. App. 19921, rehearing on petition for discretiona~yreview denied
(May 20, 1992)
Civil cases are deerl~edinstructive, bill 11ot binding in critnind cases.
See, e.g.:Aiuarez ir State, 605 S.K2d 615,617 (Tes. Crim. App. [Panel
Op.1 1980)
978 S.W.2d 674,677 (Tea. App. Eastland, 1998 pet refd.)
see Id at 676
Z7SeeId at 676
28 See Id. at 676
"See Id at 676
3O Seeld. at 676-677
.''See Id at 677
32See Id. at 677
33 19ickvare u. Slate, 1998 \Vl 315620, *4 (Ten. App.-Dallas Jun 17,
1998) (NO. 05-95-01767-CHI, petition for discretiona~yreviewgw~~ted
Ua1113, 19991, judgment vacated Om1 13, 1999) in uorepo~tedopinion
34 UnitedStatcs u. Sings,; 943 E2d 758, 762 (7111 Cb. 191)
"
I
APRIL 200% W . T C D I . A . C O M
VOICE FOR
THE DEFENSE
I
147
35See Id at *4
36 TVi'IIian~su. Skite, 1999 WL 170813, *2 (Tex. App: Dallas, 1999)
(unpublished)
u. Carlisle, 928 S.W.2d 623 (Tex. App.-Port Worth Jun 27,
1996) reheariu~overruledIAua
. 15.,1996).
. . .' writ denied IDec 11.
-. 1996)
-.,
cert. denied &isle
Robinett, 118 S.Ct. 74, 139 L . E ~ . z33,65
~
USLW
3840, 66 USLW 3225,66 US1.W 3255 (U.S. Tex. Oct 06, 1997) (NO. 96.~
1993)
89111 District Court, Wichita County, J u h t a Pavlick, J.
39 Colorado: People u. Lujan, 174 Colo. 554,484 P.2d 1238,1241 (Colo.
1971) (en banc); Ma~ylandHenson u. State, 236 hm. 518, 523-524,
204 A.2d 516, 519-520 (1964); North Dakota: State u. hmk,209
N.VT2d 772, 777-778 (N.D. 1973); New York: People u. De ,%go, 16
N.Y.2d 289, 292, 213 N.E.Zd 659, 661,266 N.Y.S.2d 353 (1966) (similar rule for searches related to gaiibling operations), cert. denied, 383
U S 963 (1966)
40 Tex. Code Crini. Proc. Am. Art. 15.25 (Vernon 1967)
u. State, 568 S.W.2d 847, 858 (Tex. Crim. App.),
.. cert. denied,
439 U.S. 959 (1978)
42 The Court of Criminal Appeals did not discus the conmon law knock
and announce rule hi its decision in Jones
$3 Pork u. Stale, 738 S.W.2d 274,276 (Tex. Crin~.App. 1987)
4*Ifo~~eueu,
see a n d cornparve: 0owens.u. State, 861 S.W.2d 419, 421
(Tex. App. -Dallas 1993, no pet.). ("The exclusiona~ylanguage of article 38.23 applies only if an officer or other person obtains evidence in
violation of either tlie constitutio~~s
or laws of the United States or tl~eState
of Texas. Therefore, for an accused to obtain the protection of article
38.23, the policeniust haveviolated either the constitutionsor laws of the
United States of the State of Texas .... [Wle conclude under the specac
facts of this case that article 38.23 do& not provide [the defendant]
greater protection than either the Fou~ihAmendment of the U~utedStates
Constitution or article I, sectiou 9 of the Texas Constitution."
U. stnle, 1997 WL 111068 (T~x.~pp.-HOUS.(14~lD1st.)NO.
14-93-00994-CR delivered March 13, 1997) PDR rePd
46Pifts u. State, 1992 WL 91283 (Tex. App: Hous. (14 Disl.) C14-9100348-CR delivered hiay 7, 1992) no PDK
47 Tex. Code Crim. Proc. Ann. art. 18.06(b) (Verlion 1981) provides as
FoUows: "(b) On searclkig the place ordered to be searched, the officer
executing the warrant shall present a q y of the warmt to the owner of
the plnce, if he is present. If the owner of the place is not pmeat but a
person who is present is in possessiw of the place, the officer shaU present a copy of the warnit to the person. Before the officer takes property from the place, he shall prepare a written invento~yof the propeiiy to
be taken. IIe shall legibly endorse his naue on tl~einventory and present
a copy of the invento~yto the owner or other person in possession of the
property. If neither the owner nor a personhi possession of the property
is present when the ofticer executes the warrant, the oficer shall leave a
copy of the warrant and the uiventoiy al the place."
48 The validity of a combination searcl~and arrest wa~&~ut
was upheld in
Pecintr u Stnte, 516 S.W.2d 401 (Tex. Crini. App. 1974). See also:
Willtnn~su. State, 965 S.W.Zd 506 (Tex. CIUUApp. 1998); Bradlejl u.
State, 960 s.\v.z~791 (~ex.App.-~l
Paso, Aug 29, 1997); IVooldridge u.
State, 1993 WL 438187, (Tex. App.-Dallas, Oct 25, 1993, NO. 05-9201256-CR, 05-92-01257-CR,u~ipublished);Blnck~iioiiu. State, 786
S.VT2d 467 (Tex. App: Hous. (1 Dist.) 1990);Adkins u. State, 1990 WL
2980 (Tex. App: IIous. (1 Dist.), Jan 11, 1990, NO. 01-89-00005-CR,
unpublished).
$9'9 interpreting statutes, the reviewing court nlust seek to effectuate the
collective intent and purpose of tlie legidahlre. SeoBojkiii u. State, 818
S.W.2d 782,785 (Tex. Cruii. App. 1991); Tex. Gov't. Codehm. $311.003
(Vemon 1998). Thecour? must presume "the entire statute isintended to
be effective." Tex. Gov't. Code Ann. 5 311.021(2). To do so, the court
must focus on the text of tlie statutes aid interpret them in a literal manller attempting to discern the fair, objective meathig of the text. Id. It is
the court's duty in intelpreting the statutes to give the ordinary aud p h i
37 Robinett
'
-~
ones
1 .
meaniug to the language wed by the legislature. See I d ; Sinith u. Sin@
789 S.W.2d 590, 592 (Tex. C~iiu.App. 1990); Tex. Gov't. Code Ann.
$311.011. Where the stahltoly language is clear and unambiguous, the
cou~lniust presume that the legislature meant what it expressed in the
statute. See Coit u. State, 808 S.W.2d 473, 475 (Tex. C~im.App. 1991).
Only when the plain language of the statute is ambiguous, or literal application of the language would lead to absurd consequences that the legislature could not possibly have uite~~ded,
is tl~ecourt permitted to consider exlratemalfactors SeeBoj~kin,818 S.W2d at 785-86.
5O Whether failure of the trial court to exclude the evidence would be
viewed as "harmless", of course, is a completely different matter. It is
beyond the scope of his article to exhaustively deal with the Texas courts'
application of the harniless error rule, however, counsel sllo~lldbe aware
that the failure to comply with the mandatory provisions of arts. 15.25
and 38.23 would constitute a violation of a State statutes and not a constitutional provisions, hvoking the limited provisions of Texas Rule of
Appellate Procedure 44.2 (Reve~sibleError in Criminal Cases) which
provides as fouows:
Constitutional error. If the appellate record in a criminal case
reveals constitutional error Uiat is subject to harmless
error review, the court of appeals nlust reverse a judgmeut of conviction or punishment unless the cou~ldetermines beyond a reasonable doubt Uiat the error did not
contribute to the conviction or punishn~ent.
As an "other error", an accusedu~ouldhave the burden to establish that
the violation of this statutoly provision violated a "substa~itialright".
v probably inipossible as t l ~ e
Recent history suggests that such ashowingis
current crop of appellate cou16 rarely if e er find a violation of a state
statute to uivolve "substantial rights". Given the Court of Criminal Appeals
ruling in jones, such a challenge would probably result in a Ending that
the violatioil of the article w o ~ ~be
l d harniless.
5l 996 E2d 320 (DC C t i 1993)
s2 874 E2d 822 (DC Cir. 1989)
53 764 E2d 885 (DC Cir. 1985)
54 873E2d 7 (lSt01: (RI) 1989)
5s 848 E M 2 6 (211d Cir: (AY) 1988)
F69 E3d 298 (3rdcir: (Pa.) 1993)
637R2d974
~ i i(Pa.)
: 1981)
58 439 EZd38l ( 3Ci,:
~ (Pa)
~ 1971)
59171 83d188 (4th Cir 1999)
163E3d 795 (dth Cir. (Ik) 1998)
I' 3 2 f3d 876 (qfh C~I:(ilfd,) 1994)
5Z 133 E3d 358 (5111 Ci, (Tex.) 1998)
556 E2d 1265 (5b Cir. (Fla.) 1978)
447R2d575 (5lh Ci,: (Ila,) 1971)
55 158E3d913 (dh Ci,: (Ohio) 1998)
56901E2d 1351 (dhCir: (iWich.) 1990)
720 f 2 d 9 2 7 (8C~I:(ilfich.) 1983)
153 E3d 406 (7lh Cir. (111.) 1998)
;9 136 E3d 1160 (71h Cir (lU.) 1998)
100 E3d 494
?.bI ' j$,
(!I/.) 199Q
4 E3d552 (7 Cn. (Ins) 1993)
l2 965 E2d 436 (71h Cir (Wis.) 1992)
3961E2d I265 (7th Ci,: (lVis.).l992)
'$943 E2d 758 (7th 01: (Wk)199)
'5 481 E2d 1177 (7l1l Cir. (Ill.) 1973)
I6 173R3d 651 (8th Ci,: 1999)
77165 R3d 610 (& Ci,: (Iotutr) 1999)
102 R3d973 (dhCii: (Ark.) 1996)
'9 I8 R3d54l (dhCi,: (i\bh.) 1994)
ord
"
""
(sfl, Cir: (Iowa) 1994)
80 1 6 f 3 d 8 j 4
81 956 f2d 843
82 83 j f 2 d 1267
(@ Cir: (Xeb.) 1992)
37 See Id at 548
(dhCil: @lo) I988)
(@ Cil: fiIIoJI972)
(@ Cir: (Cd) 1997)
8559 f3d92Z (gtll Cir: (Ark) I9951
86 4 Z f ~ 16
d (yfl' Cir: (Cal.) 1970)
87 332 f 2 d I 9 (gf/, Cir: ( C d ) 1964)
88 106 E3d 936 (10~"Cic (Ran.) 1997)
89 713 f2d 623 (1ltl1 Cir (Pla) 1983)
90 UnitedStates u. Ronner, 874 4.2d 822 (DC Cic 1989)
91 Stokes u. State, 978 S.W.2d at 677
92 U n i t e d S i R u. Bates, 84 E3d 790 (6tL Cic (Tetu~.)1996)
93 See Id. at 792
94 See Id. at 795
95Seeld at 794.Seedso: Unitedsfntesu.Fike, 82E3d 1315, 132. (5t11
..
Cir IW6)
,,., and United Stntes u. 111Nello: 902 E2d 336. 344 (5 C I ~ .
1990) holding that the burden is on the jefendant to sh& by some evidence that an una~u~out~cetl
ent~yactually occmred. Only dter the defendmt makes a prime facie c a e that the &eged unannounced entry actually occurred does the gwerlunent have a burden to justify their actions
by showing that the unannounced eutly ma, under the circnmstances,
re;\sonable
96 See Id at 795
97 See Id. at 796
98 See Id. at 796
99 see i d at 796-7
LoOSee Id at 795
'0' See Id at 795
lo2 UnitedStrrtesU. B ~ c k l '23
, E3d 1537 (91h Ck. (Ore.) 1994)
'0.3 See Id. at 1538
104 See 111. at 1 538
'05 See Id at 1539
106~eeId, at 1539
'07 See Id. at 1539
108 See Id. at 1539
109 See Id. at 1539
" 0 See Id. at 1538
111 Seeld at 1539
See Id at 1543
" 3 See Id at 1540
" 4 Seeld at 1539-1541 (iaternd cilatiolts omitted)
115 543 E2d 709 (9Ih Cic (Alaska) 1976)
116~eeIdat 711
"'Seeld. at 711
" 8 See Id. at 712
119Seeld at 712
IzOSeeld at 712
121 Sea Id at 712
lZ2Seeldat 712
'23 See Id at 717
lZ4
See Id, at 712; Cf. United States u. ~IIf~nning,
on r e l ~ ~ r i terr
l g hallc,
448 E2d 992 (211 Cix 1971), cer%denied, 404 U.S. 995,92 S.Ct. 541,30
L.Ed.2d 548 (1971)
125 366 EZd 923 (9th Cix 1966), cert. denied, 388 U.S. 922, 87 S.Ct.
2123, 18 L.Ed.2d 1370 (1967)
1 2 6 ~ e e latd 717
"27See Id. at 717
83 462 F2cI 1293
84 IIOE3d716
tl,
3aSeeld at 548 citing L7nitedStatesu. Ortiz, 445 E2d 1100, 1102 n. 2
:I0111 Cir.), cert. denied, 404 4,s. 993, 92 S.Ct. 541, 30 1..~d;Zd545
11971)
39SeeId at 548
40 See Id at 548
See Id at 548
42 See Id at 549
43 See Id at 549
4 4 ~ e led at 549
*5 See Id at 549
4 6 ~ e e l dat 550
47Seeld at 550
48SeeId at 550
' 4 9 ~ eId
e at 550
I5oSee Id at 550
151Seeld at 550
152Seeldat 550
15SSeeId at 550
154See ~ dat, 550
I55 See Id. at 550
156~eeld.at 550
157Seeld at 550
I58Seeld at 550
I59 See Id at 550
I a ~ c c l dat 550
161 See Id at 550
162 See Id. at 551
163 see Id at 551
See Id. at 228
167 see ld. at 228
168See Id. at 229
'69 see Id at 229
170 See Id, at 229
17' See Id. at 229
172 See Id. at 229
173SeeId. at 232
174 See Id at 231
175 See 1d. at 231
176 see Id. at 231
177SeeId at 231
'78Seeld. at 231
179 See Id. at 231
180Seeld at 231
Ia1 See Id at 233
182 Unitedstates u. Bntes, 84 E3d 790 (601Cir. (Term) 1996)
'83 \Vim a defendant seeks to exclude evidence on the bais of a Fourth
hendn~cntviolation, the burden of proof Is on the defendant. R~rssellu.
St&, 717 S.R2d 7,9 (Ter. Crint. App. 1986)
184 Id.
185 Id
~ ~ A l t l ~ o ucounsel
g h should be prepared to ar@wthat it does, citing to
United Stales v. Bates, 84 E3d 790 (61h Cir. (Te~m.)1996), United
States u. Fike, 82 E3d 1315, 1 23 (5th Cic 1996) md Ut~itedStatesa
.. 1990)
ilinelle,.. 902 E2d 336.344 (5t1 CII.
'87
25,27, snpra
188Jackson u. Stnte, 745 S.W.2d 4, 5 at 11. 2 (Tex. Crim. App 1988);
Thotnns u. State, 723 S.\Wd 696, 700-701, 705-706 (Tex. Cliul. r\pp.
1986); Cisneros u. State, 692 S.Wd 78,83 (TXA 1986); TEX. R. APP. P.
33.1
189 D e B h c u. State, 799 S.m2d 701, 718 (Tex. Crim. App. 1990);
siip
'JoSeelrl.at 541,545
131 See Id. at 548
132 See lrl. at 548
133See Id at 548
'34 See Id. at 548
1
fbot~ns~r
Skrfe,723 S.Wd at 705-705;Goodmanu. State, 701 S.W;3d
850,862563 (Tex. Mm. App. 1985);TEX.R APP. !l 33.1; TEX. R CR.
WD. 103
1%ARTICLE I, Sec. 9, TEX.CONS. "The people sM be secure in thdr
perso~ls,houses, papers and possessions, fmm all nnremnable seimres
or searches, and no warrant to search any place, or to 6ett.e any person
or thing, shalI issuewithoutdescribing thorn as near as maybe, norwithout probable cause, supported by oalh or &ation."
See also:
G&g u St&, 640 S.W.2d 899,900-01 (Tex. Ct%.App. 1982)."Article
Iz89 of our Bill of Rights guarantees security of the people 'in their persons, houses, papers and possessions' against unreasonable seizi~lrsaud
s m h e s , and it mandates that 'no wmank... to soleeany person or thin^
shdl issue uivill~outdwribing illem ac near as may be, nor withuut pnrh:
able cmse...'Article 1.06, I(:CPI provides the s:mie slmtoly protcrtion."
An interesting question, beyond the smpe of this arfice, is
whether the T m ConstihNion would peovide greater protection in this
area 161m the United Sates Comtihctioa. InHeit~nflnU. W , 8 1 5 S.W;2d
681 (Tcx. W.App 1990), the Court of Cdminnl Appeals held that, in
solue situations, Tmc. COINST. Art. I, 49 may provide greater proteetion
than the Fourth Amendment. See, Affran u. Sfate, 887 S.X2d 31, 36
(Tex. Grim. App. 1994) (greater protection in someeantninecseatches);
see also Dmnporr u Garcia, 834 S.W.2d 47-10 (Tm. 1992) (Tmas
Supreme Court aclmowledging thq theTexas consiitutionextends greater
freed on^ thm the Federal Comtih~tion)
TEX. CODE CRIM. PROC. ANN M. 1.06, " S w c l and
~ ~ Seizures. The
people shall be secue in theic persons, houses, papen m l pmessio~~s
from all weasonable seizures or searches No warm111to sead~any
place or to seize any p s o o or thing shall issue without describimg tlle~n
as near as may be, norwWout probable causesupported by oath or errmation."
W & m u State. 1999 \m. 170813., "2 .(Tex. Am- Ddas.. 1909)
.,
(unpublished)
'3United Stat@ U. PdJIia, 508 U.S. 77, 113 S.Ct 1936, 123 L.Ed.2d
635 (1993) bar curim
1 9 P ~ i l i gu.i Kenfudk, 4 8 US 98, 100 S.Ct. 2556, 65 LEd.2d 633
(lgso).See also: ~WSOII
u, Sfatel692 S.Ezd661,667 (Tex. Crlm. App.
1984) (citi~gRawfingsu. Kvnfucky)
'95 Id. ; Goehring u. 8tflatL:627 S.W.2d 159,164-165 (Tex. Crh. App.
1982)
l~~easo~blenessofexec~~tion
o f w ~ z seems
h
to depend upon theleason for and object of the search. O'Conno~u. Or@a, 480 U.S. 709,107
S.Q. 1492.94 L,Ed.Zd 714 (1987) Vdidityis ~iotdependent upon probable cause but on a gene~tdstandardsf renrolrableness
I97 Dauis u. Missfss@pi, 394 US 721, 89 S.Ct 1394, 22 LEd.2d 676
(1969).ACGorA Crittmdm u. St&, 899 S.W.24 668 (Tar. Crhn. App.
L
.
1€lo<)
>
,,,-
'98 IblIm u.Arknmsr8,514 U.S. 927, 115 S.Ct. 1914, 131 LMAi 984
n. 4 (1995)
'PM.The Court co~~cl~~dod
that the pdice action was teasonable mder
the clrc~unstmesthus t h a t was no need to address whether the exclusionaryrule should apply
2oo%'3KS. 65,118S.Ct 992,140LM2d191 nt l98-fJ9,n. 3 (199@
20' Seeld. at 199, n.3. The Supreme Couourt fouiod in Knrneria that there
was no Pou17h Amendment violalion, thus no need m consldec mhether
the edusclusiona~yn~Ie
applied, cfting1Vi3u. WIItirm,467 US. 431,104
SCt. 2501,81 LEd. 377 (1984) and WmgSnnu. Unitedstnles,371 US.
471,83 s.n.407~9L,E~.;M441 (1963)
2 0 Z ~ o h ou.nState, 871 S.X2d 744,750-751 (Tw. Qim. App, 1994)
zo3 Where aclions of law enforcement tmreason,?ble, Pour111Amendment
psotecb property as well as privacy and applies in the civil as wen as
crimiml context Se*mres are cwered even if there is no search.
Reaso~mhIenessof the se&~rurehere, SoIddu. Cook Couufy, SO6 6.8.56,
113 S.Q. 538, 121 L.Ed.2d 450 (1993),not before the Court, but if not
i ~ a m ~ ~ a28
b lU.
e S.C. $1983 cM1rights action is a proper remedy. G.1U.
Leusing Cot$. u. i7niredStatm, 429 US. 338,97 SXt. 619,50 L.Ed 2d
530 (1977) (1.R.S. agents may be liable for n l o q damages for umeasunable search.)
to theu numbers in the comn~~uuty~
In all h k ~ o o d il, any County
Conm~issioner'sCo~irtis approached about mcreasiug ju~ypay, all
objechons will be based solely on fi~~anc~al
grounds if a county, hke
Daas Countv, has m under reoresenfedmmnntvmnm
and reh~sesto
,increase jllry pay, the question remains whether tl~ereis any remedy
under the United States Constitution.
JURY
~~hckDIic~Ise~~g~fld~~aIPn
fmm
G80rgettounr U"il~~,$Lmtl
C8,tter in
19% H e r ~ m f kb~wdbydIicI~eIS
n
Pnuer lo ask1 in lh3 reprwentatiot~sf
rt~hite-collnrd~fett&t~Is Afw hroypnrs
wirbMr Fmw~I ~ j o i f ~ e d f k F e d ~ ~ a I
Public &?fender'sd o i c e in &I/m. Ajer
SIX find me Lw~jem
in fhFdernl
PnbIicDejeder's OQm, be@rmed
Brdett &dlrcPdre# ioiib WirrfBreden,
also ~famtar&irfo~~tFedemIR~dIrc
Defedrr Tl~eirpmericeis dewfedfa
crimhmflidefa~~sa
This article is mptfnnted withfootnotes. Apreuious wrsion npptnrd
lust ~ t ~ o nroifhout
th
them. Apologies to (heAuthor and tk~nks
for his
contribution.
On October 22, 2000, the Dallas Morning Xews published a statistical
analysis of the conlpositionof juries in Dallas County. This analysis established, that m relation to their population in the county, HHispanics dramatidy under report for jnry duty. Tile study also showed that wlute
residents are over represented anong jurors that report. Moreover, the
study showed that the poor are under represented and the nc11 are over
j u ~ ~The results of this sh~dyprobrepresented in Dallas ~ o ~ m t ypools.1
ably come as no snrprise to someone who rlrcgularly tries cases in Dallas
County. %at is sigdcant about the study is now, for the first time, more
than anecdotal evidence exists to establish tl~isunder representntioo of a
minority group and lower income residents from the july poolz
In addition, the Dallas Morning News survey established that
those individuals who failed to report ovemheln~gdid so simply
because they could 1101afford to report for jury setvice. Tl~estudy s t a b
fished that individuals slm~n~oned
who bave homehold incomes under
$35,000 were disproportionately Hispanic. Dallas County pays jurors
only $6.00 per day and State law does not require employers to pay
many
employees who are absent as a result of jwy semice. As a res~~lt,
are conbonted with the clmice of foregoHispanic individual st~mmo~~ed
ing the earnings necessary to meet niinimal household expenses or
reporffi~g
for jury service.3 Undoubtedly, the sihtation in Dallas County is
nlirrored in many other counties tluo~~ghout
the state of Texas
As a matter of basic fairness, it is clear that people should not
have to forego putting food on the table in order to exercise their ri&t
to selve on a jury Most peoplc would also agree that as a matter of baic
fairness, aHispanic defendant ought to have the opporh~nityto select a
ju~yfrom apool of jurors that renects the proportion of Hispauics in the
con~munityMdence exists hat if jurors were paid $40.00 per day for
their smice, tiley would show up for ju~yduty in numbers proportionate
A
The Sixth Amendment of the United Slates Constilution g ~ m tees that a criminal defendant has the right to a speedy and public Nial
by an impartial juty The Supren~eCourt has interpreted the Sixth
Amendment's impartiality requirement to mean that a jury must represent a & cross-section of the commu~ity.~
The notion of an impartialpry is symbolized by a group composed of people representing the
v experiences of a particular commmivarious values, viewpoints, and
ty. To satisfy the representati e requirement of tile Sixth Amend ent,
however, juries must be nadomly selected from the con~munity.
b
The fair cross-section requirement does not eatitlea defendant
to a j~nythat mirros the conim~~nity
and reflects the numerous distinclive groups present LI tile population Rather, the Sixth Amendment
gz~mnteesa defendant the opportunity for a representative jury by
requiring that jury wheels, pools of names, panels, or veniresfron~which
'ial courts dmw juries must not systematically exclude distinctiw groups
in the community. If a j~ywheel, pool, panel, or venire systematically
excludes distinctive goups, d~enthe resulting jury fails !a constihlte a fair
em-section of the ~ommunity.~
'
Inhretl u. hlissourf, theSupremeCourt set forth a clear three
part test to establish a prima facie case of the violation of die fair crosssection reqeqoirement: (1) tltat the group dleged to be excluded is a "distinctive" group in the comnumnitr, (2) &at the representation of this
group in venires from which juries are selected is not fair and rmsonable
in relation to tlie nun~berof such pemns in the comuunily; and (3) that
tllls under representation is due to systematic exclusion of the group in
the jury-selection process.
If a defenda~tsuccessfully proves that a
p~inlafaciefair cross-section violation has occurred, the burden shifts to
tl~eg o v m c n t to show that "those aspects of the jury selection process
. . that r e d in the disproportioyte exclusion of a distinctive group"
advance a signiGGmtstate interest.
.
There is no doubt that the group identi6cd in DaUas County,
nmdy Hispanics, is a "distinctive" group in the community. MexbnAmerica~swith Spanish surnarues are a clearly identifiable class with a
histoly of subjugation to discriminato~y
There is also no
doubt that an absolute statistid disparity of 18%between the percentage
of Hispanics in the county and the percentage of Hispanics reporling
csl;1bli41c>tIw 1lisp:tnirs are ~~ntlcr
represe~~cd.(harts hare rouli~~ely
mwdccl ll~rlan al)solutest:!t]stical dispari~yui o w IOX pcrrcllt meels
the second prong of the test."
Tl~ered issue iu Dallas Connty is whether this under representation is d ~ to~systematic
e
exclusion of the group in the jury-selection
process. On first consideration, one might tlliuk systematic exclusion to
be s)nonymouswith a jury selection process which engages in intentional discrinhtion. This notio~~,
however, would be mistaken. A defendant
need not show puqoseful discriruiuaion; 11e "need only show that the
jury selection procedure 'syste~~tically
exchde[sl disiinctive groups in
the community and thereby fail[s] to be a reasonable representation
therwf."12 It nevertheless remains to be seen whether any court will
cons~de?either failure to adequately pay jurors to caustihlte "systematic
exch~sion."
With respect to tlds issue, an imresting comparison may be
made between the two grand ju~ycases, Cerrfu u. Texas and Hernandez
Texas pmvides her with a "jury pool" for Dallas Count): This "jury pool"
is computer data "downloaded" on a "c.d. ro~n"hat contains a list of
Dallas County residents on the basis of voter registlntion information
compiled by the State, and driver'slicense records compiled by the Texas
Departmwrt of Public Safety,who are believed to be qualified joro~s.This
database ofnames is pmgr;uurued to randomlygenerate the names which
will comprise the ju~ysummons issued for my given week. The Dallas
Moini~~g
News tmcked tbe issuance of 13,612 sununons for the tint
weekiu Mxch, 2000. It then ~andomlyprovideda qnestionndre to 400
and reported for jury
of those people who responded to the sununons
ma
duty, tmd 400 people who failed to respond. The resdts of its analysis
were bmed on this survey
other articles fmm the M a s Morning News addressed
this issue. One entitled "Duty Calls, Few Answr,'' published on October
23, 2000, reflected some of the infor tion gathered by the DaUas
Morning News concerning the lintmcid dilemma many hdividuals are
placed in when summoned for jury duty. The otl~erarticle, entitled "No
Excuses," publisl~edOctober 24, 2000, reklected the New York experience in which j~ypay was increased md the sllmmons were enforced.
In New York this grcatty increased the representation of minorities on
juries and insured tbat defendants received a jiny pool reflectinga "fair
cross-section" of tbe commutit):
tomposition of the ju~ypool under the SMh Amendment There are two
reason for tbis. First, a pFima facie showings under an "equdprotection"
challenge may be rebutred by proof of an 8bsence to discriminate \'hereas under a Sixtl~Ame~~dnlent
challenge once "sy6tematic exclusion" is
shown, the stab must sbow "adequate justiscation" for the systemac
excl~~sim.
S#eJ~lsticeRehnq~Iist'sdissent in Dzwn. Because ''q3IematI
on, one
ic excl~~sion"
does not necessarily m t d intentional discriminlf'
avoids the problem of the State simply having the individ~~als
respo~~sible
for compiling the jwy pool testify that they do not intentio~~dly
discriminate and thereby p r d Second, a Sixth Amendment challenge doesnot
requhe that the defendant be a member of the under represented group.
See Tqyior u b~dsisna,(n~aledefendant succcssh~lly
challenges law that
pamits the exclusion of women); and Peters u. Ki@ 407 U.S. 493 (
1972) (case in wbicl~a white man was permitted to raise a challenge
concerning tlte excIusion of blacks).
~ccordingto the Dallas Morning News xflcle, "Ehtra hioney
Helps EL Paso Lure More Plospect~veJurols," publisl~edOctober 24,
2000, jury pay was increased to $40.00 per day, and the percentage of
s from 22% to 46%.
people responding to the s ~ m o n rose
&g., Smith u. Taws, 311 US.128, 130 (1940).
61ki,'lor e. hisiana,419 U.S. 522, 530 (1975).
10 SeeHernandez u. Te.uws, 347 US. 475 (1954).
11 See United States u. Rodr&ue& 776 E2d 1509, 1511,
(11th Cir. 1985); Urzitedstafes u. Clflord, 640 E2d 150, 155 (8th Cir.
1981); UnifedStntesu. Tesf,550 E2d 577,587 (10tl1 Cie 1976).
12 See Duren, 439 US. at 363-64 n.26.
I3644 S.W.Zd875 (Tx Ct. App - Am;ll.Illo 1982); NO. 08-17.
00503-Cr (Tx. Ct App. -El Paso 2000)
14fie "key man" system used in Texas at the time consisted of
tbe state district judge appoint tl~reeto five pelsons to s e w as jury cornmissionels. These jury comrnissio~terswould t11cn select prospective
juro~sfrom the community w110 fi1l0Ued tbe vaitous shh~totyrequirements for being a g m d juror See Ci~cdn~Ianos
Unidosde Sfln Jmnu.
Ifiidago Connp Grfnzdp~tyconmzissioners, 622 f.2d 807,810-11 (5th
Cir. 1980). Tlus system of selection stands in contrast to a 'ply wheel"
system by wbich the jurms are curdonfly selected.
1 5 ~ e n aecriminal
~ ~ defendant is better off challenging the
APRIL 2001
~WWW.TCDLA.COM
~ O I C EFOR THE DEFENSE
1 53 1
14TH ANNUAL
RUSWDUNCANSEMINAR
AGENDA JUNE 7-9
I N E 6,2001
6:OOPM
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WELCOME C . M u K 8
BETW BLACKWELL, TCDLA PRESIDENT-ELECT, 2 0 0 1 -2002
MAKIN6 JURIES HUWOkY FOR
D A N HURLEY, LUBBOCK
( 3 0 HR)
HOW TO TELL WFWN WIRY AmE FAKIN6 m
m P W N 6 AMD 8 X C W M M r rum< SCIENCR (.75 HR)
GEORGE CASTELLE, CHARLESTON, WEST VIRGINIA
cnoSs -rcijiiih
HR)
M A R K DANIEL, FT. WORTH
BH) P l C T U U r THE C R U U Dm J O U h UTC. (.75 HR)
JUDGE N A N C Y STEIN N O W A K , S A N ANTONIO; HENRY
BEMPORAD, S A N ANTONIO, JUDGE LAURA PARKER, S A N A N T O N I O
ruwcn ON YOUR 0-
CIIUIVINa
sum
smNO COsT3UUC1Mmm IYID.wc.
TO PROVE l-a&
(.SO HR)
GREG WESTFALL, FT. WORTH
MOW TO AVOID 0SNA-D.
B4.Y ( 1 .OO HR ETHICS)
RICHARD ANDERSON, INTERNATIONAL MAN O F MYSTERY, DALLAS
IYUCK JA66ER R U U OC DtSCOmYs I O U DOWT &&WAYS,
QRT WHAT YOU WANT BUT IF YOU TRY, SOMBT1111111
YOU 6RT W84AV YOU &ED (.50 HR)
JOHN CONVERY, S A N A N T O N I O
wnr mourn YOU crnc rsout a u ~ asmmwcs
m
IN COlllWQC LABS3 01 DOES YOUR LAB bTOM BLOOD
w m w a n ? (.50 HR)
J A N I N E ARVIZU, ALBUQUERQUE, N E W MEXICO, AND FRED
WHITEHURST , BETHEL, NORTH CAROLINA
Q & A (.25 HR)
JANINE ARVIZU, ALBUQUERQUE, N E W MEXICO,
AND FRED WHITEHURST, BETHEL, NORTH CAROLINA
I
RRASONRD APPROACH TO INSANITY ( 5 0 HR)
GEORGE MCCALL SECREST, JR, HOUSTON
HE NUDED KlLLlNOr THE BACIRRD SPOUSI
DEmNSE IN TEXAS (.50 HR)
ERIC ALBRIDON, LONGVIEW
ADJOURN
LOS @OLDSTEIN'S
PARTY
-
FRIDAY, JUNE 8,2001
8:OOAM-8:3OAM
MAKING SAUSAOlr THR RRSULTS OW OC THIS
111\R8S UOISUTIVW SRSSION ( 5 0 HR)
KEITH HAMPTON, AUSTIN, CAROLYN DENERO, AUSTIN
8:3OAM-9:OOAM
H l O H COURTS F l N p APPRALINO ( 3 0 HR)
WHu
MtCHAEL GROSS, S A N A N T O N I O
9:OOAM-9:45AM
c r o s s - u n m r ~ r r omr CHILD
ANNABELL HALL, RENO, NEVADA
9:45AM - 10:ooAM
BRIM
Hnrnus (.75 HR)
WMWP? RRCINT SIGNIPICANT DECISIONS (.50 HR)
JUDGE BARBARA HERVEY, AUSTIN
PARDON ME? M R D O N S AND P A R O U (.50 HR)
BILL HABERN, RIVERSIDE
-
DWFENDINO THE DIFENDER (.75 ETHICS)
V A N G. HILLEY, SAN A N T O N I O
LUNCH ON YOUR 0-luCIOQQCClOHC#lMQllOWlm
(50HR)
BRIAN CHAVEZ A N D ADRIAN CHAVEZ, ODESSA
L I E AND THE PRACTICE OF LA= RTHICAL ADVICE
TO PASS FORWARD (.50 HR ETHICS)
ROBERT JONES, H O U S T O N
r
MA KIN^ MURDER
PEDRRAL CUE
J.A. "TONY" CANALES, CORPUS CHRIST1
(.so HR)
mw
ruvanur
OVRRVIRW (.50 HR)
BOB D A W S O N * AUSTIN
HOWTO Q.1W#llUCKONAJACK MCGINNIS, S A N A N T O N I O
-
PRAClla (.5OHR)
HOW TO OBTAIN RXPRRT W T M S S A S S l S T m C I C.50 HR)
GERRY MORRIS, AUSTIN
I
K
*
)
m
JUDGE CHAR
-B
, AUSTIN
l.50 HRI
ADJOURN
30TM ANR
30TH ISWICIWIU-RY
-,
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SEE B A C K COVER F O R INFORMATION AND REGISTRATION
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SAWJRDAY~JUNE 9,2m
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RWWWM3W SEMINAR A G 3 D A
WHY ARE YOU HERE I F VOU ARE NOT OUlLTY OF
SOMETHINO? H O W TO GET JURORS TO SPEAK
THEIR MINDS (.50HR)
-
CLIFTON "SCRAPPY" H O M E S , LONGVIEW
DEFENSE OF PORNOQRAPHIC PROSECUTIONS (.50HR)
W E S BALL, ARLINGTON
W--~lAWlmRlerrmorrr(.5OHR)
R U S N GUYER, S A N A N T O N I O
-
EVIDENCE WUAT'S HOT (.50HR)
JUDGE PAT PRIEST, S A N A N T O N I O
BREAU
SHOULD I STAY OR SHOULD I 0 0 2 IMMIORATION
CONSEQUENCES OF CRlMINAL UW IN PLEA
AOREEMENTS A N D SINTENCINOS l.50 HR]
BOB SHIVERS , S A N A N T O N I O
THE FOROOlTEN PHASE
RANDY WILSON, ABILENE
-
PUNISHMENT DEFENSE (.50HR)
WHAT LURKS O N THE HORIZON: I S THmRE LlOHT AT
l H E END OF THE TUNNEL, OR I S THAT A TRAIN COMING
IN OUR DIRECTION? t.75 HR)
GERRY GOLDSTEIN, S A N A N T O N I O
ADJOURN
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