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HCCLA OFFICERS
2001-2002
PRESIDENT
Wayne Hill
PRESIDENT ELECT
W. Troy McKinney
VICE PRESIDENT
Cymhia Henley
SECRETARY
Paul SL John
TREASURER
Emily Munoz
PAST PRESIDENT
Richard Frallkoff
BOARD OF DIRECTORS
Mary Acosta
WinslOn Cochran
Rick DeTolO
Rosa A. Eli.des
Robe", Fie/cman
Kevin Fine
Tucker Graves
Ron Hayes
David Jones
David Kiana
Jim leimer
Da.ina O' Kane
Kyle Sampson
Gram Scheiner
Norm
Helen Simotas
PAST PRESIDENTS
1971-2000
C. Anthony Frilioux
StUart Kinard
George Luquette
Marvin O.league
Dick DeGuerill
W.B. House, Jr.
David R. Bires
Woody Densen
Will Gray
Edward A. Mallett
Carolyn Garcia
Jack B. Zimmerman
Clyde Williams
Robert Pc/too
Candelario Elizondo
Allen C. Isbell
David Mitcham
Jim E. Lavine
Riel< Bras.s
Mary E. Conn
Kent A. Schaffer
Dan Cogdell
Jim Skelton
George J. Pamham
Garland D. Mcinnis
Robert A. Moen
lloyd W. Oliver
Danny Easterling
Contents
From the President . . . . . . . . . . . . . . . . ...... 2
Horizontal Gaze Nystagmis ................. 3
Intoxication & Drugs of Abuse Testing . ........ 5
Blood ............ . . ............... 9
Apprendi ................. . 11
Succeding in Probation . . . . . . . . . . . . . . . . . . . 15
Banquet Photos ......... . 16
How to Seal Juvenile Records . . . . . . . . . . ..... 18
Winning . . . . . . . . . . . . . . . . . . . . . .. 20
Let's Hear From You!
Call us with your suggestions on this publication.
The Defender
Publisher
Editor Emeritus
Editorial Staff
Advertising & Distribution
Design and Layout
HCCLA @ (713) 227-2404
Allen Isbell
W. Troy McKinney,
Cynthia Henley & Emily Munoz
Jay Skelton
Jeffrey Tesch @ Vyvid Productions
ph: (713) 526-1484 fax: (713) 526-1844
Distribution: 750 copies per issue. For article and other editorial contribution,
contact W. Troy McKinney at (713) 951-9555 or Cynthia Henley at (713) 228-8500.
To place an ad, call Jay Skelton at (713) 524-2404.
ADVERTISING RATES: (Rates are subject to change)
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Business Card SiZe: $40.00
THE DEFENDER 1
FROM THE PRESIDENT
Awards, rewards, and challenges
By WAYNE Hill
The purely fun part of serving as president
ofHCClA ended as quickly as ir began on
June 14, 2001, the evening of the annual
banquet. On that evening, numerous awards
were presented, recognizing the outstanding
achievements of HCCLA members as well
as others who have made significanr
contribu tions to the crim inal justice sysrem.
In addition to the fabulous menu, Tony's
Ballroom was energized by the pulsating
musical sounds provided by Rick "The Don"
Detoto.
David Mitcham, a past HCClA
president, was presented wirh the Arrorney
of the Year Award in recognition of the
ourstanding results he has achieved for his
clients, and as a tribure to a career marked
by professionalism and commirment to
excetlence in rhe practice of criminal law.
Richard Frankoff, immediare pasr president,
received recognition for his rireless work and
devotion to service in furthering rhe goals
of HCCLA. Troy McKinney presented him
wirh a beauriful plaque, while Roberr
Fickman presented a rather unorthodox gift.
Richard presented president-elect Troy
McKinney wirh rhe President's Award for
Troy's leadership role in aurhoring and
promoring rhe HCClA resolurion
condemning certain bond revocarion
pracrices in some Harris County courts.
I had the honor of presenting Judge
WiJliam M. "Wild BiJJ" Hatten wirh the
Judicial Longevity Award in recognition of
his decades of service to the judiciary and
citizens of Harris County. On rhe lighter
side, Judge Hatten graciously permirted
(encouraged) me to share several humorous
stories abour him wirh everyone in
anendance. It was a real pleasure to have my
long rime friend share in the evening's
fesriviries.
Vice President Cynthia Henley presented
rhe Harris County Community Supervision
and Corrections Department's assistant
direcror, Mike Enax, with HCClA's
Educarional Scholarship Award given
annually to a deserving probationer.
Our Key Nore Speaker, famed San
Antonio criminal defense lawyer Gerald
Goldsrein, enterrained rhe audience with his
usual freneric and rheatrical approach to
2 THE DEFENDER
speech making. Gerry delivered a rhoughr
provoking evaluarion on how individual
liberties are shrinking as a result of
governmental encroachmenr on the
consritutional prorections once rhought to
be guaranteed to everyone.
Finally, the annual Torch of liberty Award
was presented to Texas State Senator Rodney
Ellis in appreciation of his continuing effort
to make positive changes in the criminal
justice system. Senator Ellis, the principal
archirect of Senate Bill 7, "The Texas Fair
Defense Act," provided rhe audience with
his perspectives regarding the difficult path
this bill took before being signed into law.
He described several cases that epitomized
the need for reform bur none was more
compelling than the srory of Anthony
Robinson, Senator Ellis' special guesr ar the
banquet. Mr. Robinson served 10 years in
prison for a crime he did nor commit and
for which he was ultimately exonerared.
Senator Ellis concluded his speech by issuing
a challenge to the defense bar ro become
acrively involved in the implementarion of
rhe Fair Defense Act.
luckily for me (and for HCCLA) pasr
president Jack Zimmermann approached me
ar the conclusion of rhe banquet and gave
me some advice. He suggested rhar I call
upon former presidents as a resource during
my renure as president. Realizing thar our
organization needed to take a leadership role
and be proacrive in the implementation of
the Fair Defense Act in Harris County, I
announced rhe formation of the Fair Defense
Acr - Senate Bill 7 Comminee consisring
of Michael Charlton, David Jones, David
Kiatta, Cynthia Henley, Jim leitner, Ron
Hayes as rhe HBA Criminal law &
Procedure secrion liaison, and me. I named
Jack Zimmermann to chair rhis comminee.
(Thanks for that advice Jack!) As wirh all his
undertakings, Jack's service as chair of the
Fair Defense Act Commirree has been
exemplary.
After numerous meerings and an
exhausrive review of Texas Fair Defense Act,
the comminee produced the HCCLA Fair
Defense Acr Plan. Jack and I met informally
wirh a committee of districr court judges ro
discuss our anticipated proposals. Thereafter,
HCClA's officers and board of directors
unanimously approved rhe plan. On August
15'h, the wrinen plan was provided to both
the County Criminal Courr at law and the
District Court Judges. Jack and I presented
the HCClA Plan at the Harris County
Criminal Court at law Judges' meeting at
Del lago. We also provided our proposal to
an assembly of district court judges. H CCLA
presented a wrinen request to the Harris
County Districr Court Judges asking for a
vote on the HCClA Plan and for a public
vore on any plan considered; unfortunately,
our requesrs were declined and our Plan was
not submirred for a vore by the district court
judges and the plan ultimately adopted by
the judges was adopred in a secret meering.
The interim plan ultimarely approved by the
district court judges adopted many of the
principles contained in the HCCLA Plan,
but retained all of rhe current merhods of
appointment, including: term assignments
for up to a year (contracr sysrems), limired
term assignments for a day or week (limired
conrracrs), individual case assignments, and
a combination merhod permirring rhe use
of any of the rhree methods.
An ongoing dialogue wirh rhe respective
court groups has continued in an effort to
ensure rhar rhe defense perspecrive is
recognized and adopred in any plan finally
implemented. In rhis regard, Jim leirner,
David Kiana and I spent several hours wirh
rhe Districr Court Fee Commirree discussing
ways ro revamp rhe entire paymenr
procedure. Addirional meerings wirh rhis
commirree are anticipared.
While rhe Harris County Courts ar law
have not yer published a plan, I anticipare
rhar ir will call for a modified wheel sysrem
to provide for the random assignment of
qualified lawyers.
All members of rhe Fair Defense Act
Commirree are to be commended for rheir
hard work and dedicarion to rhis project.
Wirhour their unselfish participation, rhe
HCClA Plan would nor have been
developed.
Turning to orher marrers, I would like to
see more members take advantage of rhe
excellenr continuing legal educa,rion
programming provided by HCClA.
Cynthia Henley and Troy McKinney
organized the "After Hours ClE Program"
which takes place on rhe rhird Thursday of
See President's Message on page 14 ...
Fall 2001
HORIZONTAL GAZE (CONTINUED)
... continued from page 3
at the same two-second rate. In this phase,
each pass for each eye must take at least
eight seconds and the four passes together
must take at least 32 seconds. When the
sti mulus is at maximum deviation, the
officer must observe "distinct" nystagmus
in order to score a clue for that eye. It is
insufficient to simply observe nystagmus at
maximum deviation since most people will
exhibit some visible nystagmus when the
eye is held at maximum deviation. The
nystagmus that must be observed in this
phase must be di stinct : that is, greater than
the natural nystagmus that will occur from
holding the eye at maximum deviation.
8. Passes - Onset Angle of Nystagmus.
The fourth and final set of four passes is
designed to determine whether the onset of
nystagmus occurs prior to the eye's
movement to a 45-degree deviation. In this
phase, the stimulus is moved very slowly-
at a rate that would take four seconds to
move the stimulus to the person's shoulder
or at a rate of no more than 10 degrees per
second. Once the officer thinks that he sees
nystagmus he is required to stop moving the
stimulus and hold it steady to confirm the
presence of nystagmus. The stimulus must
be held sufficiently long to confirm the onset
of nystagmus, sufficien rly long for the officer
to examine the alignment betwee n the
stimulus and the edge of the shoulder
(approximately 45 degrees) so that he can
estimate the angle of onset, and sufficiently
long for the officer to confirm the presence
of some white remaining in the corner of
the eye. Ass uming an onset angle of 30
degrees and the stimulus being held for two
seconds to confirm the continuation of
nystagmus, each of the four passes in thi s
phase must take at least eight seconds (three
seconds out, two second hold, three seconds
back) and the four passes together must take
at least 32 seconds.
9. Vertical Nystagmus. Although there is
also a protocol for two passes for vertical
nystagmus (VGN) upon completion of the
HGN, VGN was not examined in the
NHTSA validation research of the SFSTs
and it was not included in the SFST barrery
during the original research. Importan tly, it
is not part of the HGN test and it is not
admissible under Emerson.
4 THE DEFENDER
14 X 82 Litmus Test
When the four phases and 14 passes of
the HGN are combined, administration of
the HGN from the time the stimulus first
begins moving must take NOT LESS
THAN 82 seconds. Any HGN test that does
not take contain at least 14 passes and take
at least 82 seconds from the time the
stimulus first begins moving is not admissible
because it has not complied with the third
prong of Emerson: that is, the test was not
administered in accordance with NHTSA
protocol and requirements. As a practical
marrer, most HGN administrations should
take at least 90 seconds. Since very few
people are 100 percent proficient all of the
time, since some pauses during the
administration are natural. and since some
passes, such as the onset passes may actually
take longer than the theoretical minimum,
when for instance, the onset is at 40 degrees
instead of 30 degrees, any HGN that takes
less than 90 seconds is suspect and should
be more closely examined for compliance
with each individual phase of the test.
Other Common Mistakes
Other common mistakes in the
administration of the HGN include moving
the stimulus too quickly - or less
commonly toO slowly - on individual
passes, holding the stimulus closer than 12
inches or further away than 15 inches, not
holding the stimulus for at least four seconds
at maximum deviation, and curving the
stimulus upward, downward, or around (also
called looping) as it is being moved through
the passes. If any of these mistakes are present
in the administration of the HGN, the test
and its results is not admissible because the
officer did not comply with the third prong
of Emerson: that is, the test was not
administered in accordance with NHTSA
protocol and requirements.
According to the NHTSA material, the
presence offour clues indicates a likely blood
alcohol level of at least .10. In Texas, however,
under Emerson, it is improper for any witness
or officer to testify to any correlation or
relationship between any number of clues
and any quantifiable blood or breath alcohol
level. Rather, under Emerson, all that is
admissible from the presence of at least four
clues is testimony that the administration of
the HGN indicated "intoxication." In reality,
all that the prese nce of gaze nystagmus
indicates is the presence of a central nervous
system (CNS) depressan t in the person's
system. While alcohol is a CNS depressant ,
the HGN is not specific for alcohol. Indeed,
alcohol does not even cause nystagmus.
Rather, its presence in a person's system
simply exaggerates the presence of the
nystagmus present in all people.
More detailed information about th e
NHTSA requirements and protocol for the
HGN as well as the other SFSTs can and
should be obtained from the NHTSA
manuals and the studies that have been
conducted regarding them. Every
practitioner handling OWl cases should have
and learn the material in those manuals.
Manuals
There are 3 different types or classes of
manuals: (1) Student Manuals for the
Student Course; (2) Instructor Manuals for
the Student Course; and (3) Instructor and
Student Manuals for the Instructor Training
Course. The links and NTIS Numbers for
each follow. Everyone should have, at least,
the 1995 and 2000 Student and Instructor
Manuals for the basi c SFST course. The
NHTSA SFST manuals ca n be obtained
from:
US Dept. of Commerce
Technology Administration
National Technical Information Service
Springfield, VA 22161
800-553-6847 for orders.
888-584-8332 customer service.
http://www.ntis.gov.
The current manuals can also be obtained
from Texas A&M since it is the entity in
Texas that provides Texas law enforcement
officers with the material. The manuals are
available from:
Texas A&M University
Engineering Extension Service
Law Enforcement Division
979-845-3211 (A&M main number).
979-458-6850 (Engineering Extension
Service).
800-423-8433 (Law Enforcement Division).

FaJl200I
INTOXICATION, DRUGS OF ABUSE
TESTING, & FORENSIC APPLICATION
BY NACHMAN BRAUTBAR, M.D.
Recreational use, and abuse , of
prescription and illicit drugs has grown in
the last 15 years, and become a point of
concern to both forensic and non-forensic
physicians. Various regulatory agencies,
insurance companies, and idiocolegal
processes, such as workers compensation and
personal injury defense, have been utilizing
the defense of intoxication (drugs of abuse
and alcohol or a combination of either) in
order to prove or disprove liability for injury.
This paper attempts to address testing for
these areas.
Biological samples for
use in drug testing
Commonly, three types of biological
samples have been utilized:
1. Blood.
2. Urine.
3. Hair.
In tests that are utilized to determine if a
patient has "used" drugs (as opposed to an
attempt to determine if the patient is "under
the influence"), the following can be
expected. Hair will retain the drugs for
several months, most commonly three
months after the use. Urine will retain drugs
or their metabolites for anywhere from
several hours to several days, or in some rare
instances, weeks. Blood will retain the drugs
or their metabolites for several hours and in
some instances longer.
To determine whether the person is
impaired as a result of a drug abuse, blood is
the most accurate biological tissue to be
tested because the levels in (he blood or the
presence of the drug in the bloodstream are
very importanr objective determinanrs in the
process of diagnosing or ruling out the
" impairment or under the influence of
drugs" or the " intoxication defense."
Does positive blood testing,
urine testing or hair testing
indicate impairment?
Positive hair samples for drugs of abuse
does not equate with impairment. A positive
result on a hair test can only determine that
Fall 2001
in the past a patient has used drugs with a
given limit. The presence of drugs of abuse
in the urine absolutely cannot be equated
with impairment, bur rather only with use
in the last day or several days, and in some
extreme cases the previous week. The
presence of most drugs or their metabolites
in the blood will not prove impairment
because there is no scientific data to
extrapolate the exact level of drugs in blood
that will impair a specific user. That type of
extrapolation has been made only for
alcohol, which has a legal definition in
driving statutes, as well as medical forensic
extrapolation formulas.
Commonly a toxicologist and forensic
physician will be asked to determine whether
urine testing positive for drugs indicates that
a person was "under the influence" or
"intoxicated" when an accident occurred on
the job or when a car accident occurred on
the road. The presence of drugs of abuse,
prescription medications, or their
metabolites in the urine cannot be equated
with impairment. Unless clinical data from
the site of injury or prior to the injury can
indicate that the patient was behaving as an
impaired person, it will be very difficult to
establish impairmenr. The presence of drugs
or their metabolites in the blood may
suppOrt impairment based on the blood
levels and the clinical behavior.
Drug recognition expert program
Due to the problem with identifying
impaired workers and drivers in relation to
drug/blood concentration, the Los Angeles
Police Department has developed a program
called the Drug Recognition Expert Program
(ORE) . This program started initially with
the training of officers to recogniz.e behavior
and psychological symptoms associated with
psychoactive drugs. Over time, the program
has attracted the attention of other agencies.
Based on the evaluation, a ORE forms an
opinion as to: (I) whether the suspect is
impaired; (2) if impaired, whether the
impairment is related to drugs; and (3) if
related to drugs, which drug category or
combination of categories is causing the
Impairment.
In a recent study (Governor's Office of
Highway Safety), the police department and
ORE program utilized data software
developed by Southern California Research
Tnstitute under National Institute on Drug
Abuse funding to record and analyze data.
A patient bank of 390 men and 108 women
drivers was analyzed. The OREs correctly
identified at least one drug category in 91 %
of 415 specimens in which the laboratory
confirmed one or more drugs. No drugs were
found in specimens from 26 individuals
whom the OREs judged not impaired by
drugs. The ORE's decisions were supported
for 83.5% of 484 specimens, and not
supported for 16.5% specimens.
Tn 14 cases, the ORE entirely missed the
drugs found in urine and in 47 of the
specimens for which the laboratory
confirmed multiple substances, the ORE's
decisions were combinations of hits, false
positives, and false negatives . The ORE
missed marijuana more often rhan other
drug categories, but it cannot be determined
whether the misses were ORE error or a
consequence of the drug's time course. Since
the drug's principal metabolite can be
detected in urine for days to weeks, a
specimen may test positive even though it
was obtained at a time when active marijuana
was not ptesent and affecting the individual.
A positive result for marijuana in urine,
which is not supported with evidence of
behavioral impairment, cannot and does not
speak to the question of drug "intoxication. "
This scientific fact is commonly forgotten
or is unknown to some forensic physicians
who have the professional and ethical
responsibility to evaluate whether the patient
was under the influence of illicit drugs. For
instance, r had a patient who was involved
in a truck collision while on the job, and his
urine test positive for marijuana. The
forensic examiner opined that the patient
was "under the influence," despite the fact
that the emergency room notes and the
paramedic notes clearly stated the patient was
"alert x 4" (times four).
Tn the study of OREs quoted above,
cocaine misses occurred with the second
continued on page 6. ..
THE DEFENDER 5
INTOXICATION (CONTINUED)
... continuedfrom page 5
highesr frequency. Behavioral science
shows rhar srimulanrs are ofren difficulr ro
derecr, bur ir cannor be derermined wirh
cerrainty wherher rhe misses are rrue
errors. Since rhe half-life of cocaine is
approximarely 90 minures and rhe
merabolire (breakdown producrs of
cocaine) benzoylecgonine (BE) is known
to have no psychoacrive effecr and can
usually be derecred for 24 or 48 hours,
urine posirive for BE does nor mean rhar
rhe suspecr was "under rhe influence"
during rhe evaluarion.
The dear message
from these studies is
1. The presence of drugs of abuse in rhe
urine cannor be used for rhe "inroxicarion
defense."
2. The presence of drugs of abuse in rhe
blood cannor auromarically be exrrapolared
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6 THE DEFENDER
ro rhe "inroxicarion defense." Each case
requires careful analysis of rhe medical
records and rhe clinical reliabiliry of rhe
blood levels.
3. The presence of drugs of abuse in hair
has no meaning wharsoever and can nor
supporr rhe "intoxicarion defense." The only
exrrapolarion ro be made is (har drugs were
used somerime in rhe pasr.
Medi:ations And Substan:es
Causing False Positives
There are 161 prescriprion and over-rhe-
counrer medicarions rhar have been srudied
and resulred in 65 false posirive resulrs in
rhe commonly adminisrered urine resr for
drugs. According ro rhe Los Angeles Times
reporr, Siegel, a psychopharmacologisr ar
UCLA, said, ''The widespread resring and
reliance of rell-rale rraces of drugs in rhe urine
is simply a panic reacrion invoked because
rhe normal rechniques for conrrolling drug
use have nor worked very well. The nexr
epidemic will be resring abuse."
The mosr commonly used urine resring
merhodology is AMIV Ir has been shown
rhar over 250 over-rhe-counter medicarions
and prescriprion drugs can cause fal se
posirive resr resulrs using rhis merhodology.
The following Table I lisrs rhe drugs rhar
have been reporred as causing false posi rive
resrs.
Table 1
Marijuana
Pain relievers such as Advil, Nuprin ,
and Morrin. Mensrrual cramp medicarions
like Midol and Trendar. All drugs containing
Ibuprofen. Passive marijuana smoke. Passive
marijuana inhalarion ar a rock concert can
resulr in a posirive urine resr despire rhe facr
rhar rhe person has nor used marijuana.
Amphetamines
Drisran Nasal Spray, Neosynephren,
Vicks Nasal Spray, Sudafed, and other
medicines conraining ephedrine or
pnenypropanolamine.
Opiates
Vicks Formula 44M conraining
Dexrromerhorphan. Primarene-M
conraining perylamine. The pain reliever
Demero] and prescriprion anti-depressanr
Elavil. Quinine Warer
Fall 2001
INTOXICATION (CONTINUED)
Methadone
NyQuil Nigh([ime Cold Medicine
Cocaine
Antibiotics such as Ampicillin and
Amoxicillin.
PCP
Diazepam, as well as some ingredients in
cough medicines. Dexuomethorphan.
Poppy seeds such as on a Burger King roll
or on a bagel roll (according to the Journal
of Clini cal Chemistry, Volume 33, No.6,
1987). Quantities of poppy seeds ingested
in thi s study, 25 and 40 grams, may be
expected to be contained in one or tWO
servings of poppy seed cake. Therefore,
poppy seeds represent a potentiall y serious
source of falsely positive resu lts in resting
opiate abuse. The paper in Clinical
Chemisuy also concludes: "Not only is it
difficult ro distingui sh heroin or morphine
abuse from codeine, bur dierary poppy seeds
can give a strong positive results for urinary
opiares for several days durarion thar is
confirmed by GC/MS analysis."
The I isr of agents rhat can cause false
posirive results in rhe urine has also been
described for endogenous excretion of
enzymes in rhe urine. For instance, a study
from Emory University by Dr. James
Woodford, has shown that a percentage of
persons of African origin, Orientals, and
Pacific Islanders may be resti ng positi ve for
marijuana secondary to a mechanism rhat
involves the pigment melanin , which
protects the skin from sun; it approximates
rhe molecular structure of the THC
merabolite which causes laboratory cross
reaction wirh mari juana.
What this means is that if you have used
any of these over-the-counter medications,
you may be accused (arrested) based on a
false posirive urine test. If your expert does
not pi ck this up you may be in serious,
ir reversible trouble.
Methodology Of Drug
Screening In Urine
There are several methods to detect drugs
in the urine. The most frequent ones are
enzyme Immunoassay (EIA),
radioimmunoassay (RIA), and florescence
polarization immunoassay (FPJA). There are
more sophisticated methodologies that are
Fall 2001
performed on extracts of urine using thin
layer chromarography (TLC), gas
chromarography (GC), high perfo rmance
liquid chromatography (HPLC), and gas
chromatography/mass spectrometry (GS/
MS). The only accepted procedures based
on the definition of the National Institute
of Drug Abuse (NIDA) and the Department
of Defense (DOD) are immunoassays
followed by gas chromatography/mass
spectrometry confirmation. The
confirmation utilizing gas chromatography/
mass spectromerry is required since the
methodology of immunoassay can give false
positive results due to cross reac tivity. This
is due to the fact that this methodology
cannot specifically identify the drug, but
rather the antibodies recognize substances
that may have the same suucture chemically,
immunologically, or enzymologi cally, other
than the drug of interest. Immunoassays for
amphetamines will show reactivity
with drugs structurall y related to
amphetamines, such as over-
t he-co u n ter sym pa to med icoam i nes,
phenylpropanolamine and ephedrine, over-
the-counter legal medications used for nasal
congestion and cold a nd appetite
suppressant. Confirmation therefore is a
must utilizing gas chromatography/mass
specrrometry. The use of gas
chro ma tograp hy/ mass s pecrrometry
provides an extr e mely high index of
reliability when properly performed and
applied.
Gas chromatography/mass spectromeuy
is a superb methodology if done correctly.
For instance, if the equipment has not been
cleaned properly, the runs from the previous
testing will contaminate the sample, and give
erroneous, inaccurate, and incorrect results .
Therefore, ir is mandatory to look into the
methodology that was used for specific
res ults on gas chromatography/mass
spectrometry ina given case. (On many
occasions a deposition of the lab technician
will reve al that the sample was
conraminated.)
Whar this means to you is that if your
utine is tested utilizing rhe immunological
method only, without confirmation with
GS/MS, there is a high probability that the
result may be a false positive and irrelevant
to your SituatIon.
Forensic Accuracy Of Gs/Ms
Gas chromatography/mass spectrometry
is exrremely and highly accurate if done
correctly. A laboratory that performs the test
must be NIDA certified or CAP (College of
American Pathologists) certified. All of the
labs rhat perform the gas chromatography/
mass specrromeuy on site can be NIDA
certified. Labs that send samples to another
laboratory for gas chromatography/mass
specrrometry confirmation are ineligible for
NIDA certification. Therefore one must be
very careful when looking at the test results
to see whether the laboratory is NI DNCAP
continued on page 8 ...
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THE DEFENDER 7
INTOXICATION (CONTINUED)
... continuedfrom page 7
certified. Furthermore, some labs do nor
properly and rhoroughly clean rhe GC/MS
equipment. Some labs do nor even conducr
GC/MS conflrmarion; ins read rhey use
cheap alrernarive merhods ro increase profirs
and reduce expenses. Therefore you musr be
in a posirion ro aggressively cross-examine
rhe laborarory direcror and rechnician.
Drug Of Abuse And Hair Testing
Hair resring for drugs of abuse has become
exrremely popular among employers. There
have been several scientific forensic doubrs
raised abour rhe use of rhi s merhodology for
proof of abuse. For example, rhe Sociery of
Forensic Toxicologisrs in 1990 srared: "The
usc of hair analysis for employees in pre-
employment drug resring is premarure, and
cannor be supporred by rhe currenr
inform arion on hair analysis for drugs of
abuse." A 1997 srudy by rhe Narional
Insrirure of Drug Abuse concluded and
indica red rhar significant erhnic bias may be
rhe resulr of resrs for cocaine. Analyrical
Toxicology, in irs Marchi April 1998 issue,
indicared rhar removal of melanin from hair
(a merhodology used ro remove rhe ethnic
bias) "does nor eliminare rhe hair color bias
when interprering cocaine concentrarions."
Congressional records from May 14, 1999,
indicared rhar rhe Secrerary of rhe
Department of rhe Army raised questions
about the Army's use of hair resting in a
specific case and members of Congress were
expressing rheir discomfort wirh the
procedure's reliabi liry. Indeed, Representative
Cynrhia McKinney, a Democrar from
Georgia, advised Defense Secrerary William
Cohen rhar she is exploring a possible
legislarive remedy ro prohibir human hair
resring for drugs in the milirary, given thar
hair resring has been proven by forensic
roxicologisrs ro be racially biased.
Indeed , rhe paper by Kinrz, er. al.,
published in rhe Journal of Forensic
Scien riflc In rernarional , January 1997,
Volume 17, pages 84 ro 123 and 151 ro 156,
indicared rhar false posirives are found even
ar low concentrarions. Tissue hair analysis
in good hands with good laboratory
technology may give an idea about habitual
use of some of rhe drugs; however, it is
preferable rhar rhese should be combined
8 THE DEFENDER
wirh urinalysis urilizing eirher screening or
berrer confirmarion merhodology.
Practical Application
to a Case Analysis
A case scenario can help to make the
above data understandable.
A 32-year-old female parient was rhe
driver of a vehicle who was involved in a car
collision and suffered inrernal bleeding
(ruprured spleen) and a fracrure of a bone
of rhe lower extremiry. She had requesred
medical benefirs from her insurance carrier
for medical expenses as well as rime lost from
work and had filed a lawsuir since rhese were
denied. The physician who examined the
parient on behalf of rhe insurance carrier,
and whose report was rhe basis for rhe denial,
nored in his reports rhar upon admission ro
the emergency room on the date of injury, a
urine screening rest for toxicology was done,
and was positive for amphetamines. The
physician who examined the patient on
behalf of the insurance carrier failed to note
the time of the testing, the time the urine
was obtained from the parient, and wherher
the patient was taking any medications that
contained ampheramines, such as ephedrins
or pseudoephedrines. The medical records,
however, contained notes from the house
doctor who arrended the patient ar rhe time
of her admission. The house doctor took a
detailed hisrory, which clearly stated that the
patient is an allergic individual and that she
had for the previous two weeks been using
compounds containing borh ephedrine and
pseudoephedrine. The medical records
further showed that all examining physicians
clearly stated that rhe patient was alert x 4
on admission to the hospiral - despite her
pain and despite medications received from
the paramedics and emergency room
physicians. There was no clinical evidence
of impairment, rhere was no hisrory of drug
abuse, and there was no evidence of drug
impairment. The problem with rhis case is
that rhe urine screening test was a false
posirive because of rhe patient's use of over-
rhe-counter ephedrine and pseudoephedrine
containing medications to treat a cold and
nasal congestion. Had a follow-up been done
on that sample with gas chromatographyl
mass specrrometry showing a specific rype
of amphetamine, the story might have been
different if indeed rhe patient was a user
(which was not the case here) .
This case further illusrrates: (I) rhe need
for a very in-depth evaluation of rhe chart
and notes, as far as ro the patient's mental
capaciry before and afrer rhe collision; (2) a
derailed analysis of past and present
prescription and over-the-counter
medications; and (3) the need ro follow-up
on urine screening rest if it is positive fot
drugs of abuse in a case where such suspicion
is indicared. Gas chromatography/mass
specrrometry is rhe ultimate tool to
eventually follow-up on such a suspicion.
In summaty, while drug abuse and
intoxication is a problem, the diagnosis of
"inroxicated" is a scientific one and can nor
be based on "personal beliefs" or "feelings"
of an examiner.
Dr. Brautbar is board-certified in internal
medicine, forensic medicine, and nephrology,
with a specialization in toxicology. Dr. Brautbar
has provided expert medical opinion and
scientific evidence in product liability, personal
injury, medical & nursing home standards, and
toxic tort cases throughout the United States. Dr.
Brautbar is a Clinical Professor of Medicine at
USC School of Medicine, Department of
Medicine, and is Vice-Chairman of the
Department of Medicine at the Queen of Angels!
Hollywood Presbyterian Medical Center. He has
published over 230 journal manuscripts,
abstracts, and book chapters in the fields of
internal medicine, toxicology, and nephrology.
His resume includes past and present membership
in 25 National and International Scientific
Societies including the Collegium Ramazzini.
Dr. Brautbar has been on the faculty of the
National}udicial College, and lectured to Judges
on the issue of Scientific Evidence, and was a
peer reviewer for the Federal Judicial Center
(Reference Manual on Scientific Evidence,
Second Edition, 2000). Dr. Brautbar has also
been a peer-reviewer for the ATSDR. Dr.
Nachman Brautbar can be reached at:
Nachman Braurbar, M.D.
6200 Wilshire Blvd, Suire 1000,
Los Angeles, CA 90048
Telephone: (323) 634-6500
Facsimile: (323) 634-6501
E-Mail: brautbar@aol.com
Websi re: www.environmentaldiseases.com
Fall 2001
PERCEPTION AND MISCONCEPTION
All "blood" is not created equal
BY W. TROY MCKINNEY
While knowledge may be power and
ignorance may be bliss, ignorance of available
knowledge gives one's clients neither power
nor bliss. In the context of criminal cases
where blood analysis forms an integral part
of the case, whether of the State's proof or as
part of the defense, most defense arrorneys,
judges, and prosecutors have large doses of
ignorance and have seldom stopped by the
trough of available knowledge. This article,
the first in a series, will describe and debunk
some of the mi sconceptions abou t the
sanctity of blood test results.
Simply, all blood, blood tem, and results
are not created equal. Initially, one must
know what substance was tested. The test
could have been done on whole blood,
serum, or plasma and depending on what
was tested, the results could differ by as much
as thirty percent.
In simplest terms, whole blood is
everything that is drawn from the person.
Plasma is whole blood less the solids in the
blood. Plasma is separated from whole blood
by centrifuging (spinning) the whol e blood
sample. As the sample spins, the heavier
solids in the blood go to the bottom of the
test tube; the liquid remaining on top is
plasma. Serum is plasma less the coloring
agents. For purposes of this article and for
purposes of comparison to whole blood,
there is little difference between plasma and
serum.
There is , however, a significant difference
between plasma or serum and whole blood.
Depending on the study and source,
variations ranging from 9 percent to 30
percent have been found and documented:
that is, an analytical result on serum or
plasma will overstate the true whole blood
alcohol concentration by between 9 and 30
percent. While many "experrs" will indicate
that they feel comfortable with a more
narrow range of potential variance, say 15
to 20 percent, it is simply not possible to
know the precise relationship on any given
person at any given time since it varies both
between people and within the same person
at different times.
The important difference between whole
blood, plasma, and serum, for purposes of
this article, is the result of alcohol's affinity
Fall 2001
for water. Not only is alcohol soluble in
water, it has an affinity for water. That is,
alcohol is attracted to and thus more likely
to reside in water than in solids. It is for this
reason that if one administered the exact
same quantity of alcohol to a man and a
woman of the same weight, the vast majority
of women would have a higher blood alcohol
level since women have a lower percentage
of body mass accounted for by water. In its
simplest terms, since a woman has less liquid
in her body in which to distribute a given
quantity of alcohol, the relative
concentration in the liquid that is present is
going to be greater than in a man. Stated
differently, 10 grams of alcohol in 100 liters
of water, as in a man, is going to be less
relatively concentrated (.10) than the same
ten grams in 80 liters of water, as in a woman
(.125) .
When viewing alcohol's affinity for water
in the context of a blood specimen, it is
useful to think of it in relative terms. For
example, assume that a person has .10 grams
of alcohol in 100 ml of whole blood. If that
whole blood is converted to plasma (the
solids are removed), the remaining quantity
of plasma may only be 60 ml. Because of
alcohol's affinity for water, however, a greater
portion of the . 10 grams of alcohol will
remain in the plasma. Thus a plasma result,
on a weight to volume basis, may be .08
grams in the remaining 60 ml, or when
converted to a 100 ml equivalent, would be
.13 grams per 100 ml. Mathematically, if
there are .08 grams in 60 ml, the equivalent
quantity in 100 ml of plasma is .13 grams.
Of course, this .13 result on plasma would
be 30 percent higher than the known value
of .10 grams in the whole blood specimen.
Even though the quantity of whole blood
to plasma was decreased by 40 percent (from
100 ml to 60 ml), the quantity of alcohol
continued on page 10 ...
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Caraway & Kiatta, L.L.P. will practice in the areas of general civil
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CARAWAY Be KIAlTA, L.L.P.
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Office 713-785-8005
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THE DEFENDER 9
MISCONCEPTION (CONTINUED)
... continuedfrom page 9
remaining in the plasma did not decrease by
the same 40 percent. Rather, for purposes
of this example, the weight of alcohol
decrease from the whole blood to the plasma
was only 20 percent (from .10 grams to .08
grams). While alcohol has an affinity for
water, some of the alcohol that was in the
original whole blood sample will remain in
the solids that are removed when separating
plasma from whole blood. If one were to
measure the weight to volume ratio of the
solids, based on the above example, one
would get .02 grams of alcohol in 40 ml of
sqlids, which when converted to a 100 ml
eqllivalent would be .05 grams per 100 m!.
The blood alcohol level in the solids would
substantially understate the true blood
alcoholleve!.
Typically, medical facilities and other non-
forensic facilities will conduct blood alcohol
analysis on serum or plasma while forensic
facilities, such as police laboratories and
medical examiners, will conduct blood
alcohol analysis on whole blood. Some
medical and non-forensic facilities will
automatically convert a plasma or serum
alcohol level and report it as a whole blood
equivalent. In such circumstances, it is
important to determine the factor used in
such conversion as it may be higher or lower
than reality or what is recognized as an
acceptable relationship.
Additionally, medical facilities will typically
use tests, such as an enzymatic immunoassay
(EIA), that have never been recognized as
forensically acceptable by the scientific
community for reliably quantifying specific
blood alcohol levels. Rather, in the medical
context, these tests ate typically intended as
little more than rough screening tests. By
comparison, most forensic facilities will
typically use tests, such as GC-MS (gas
chromatograph - mass spectroscopy), that
SCHNEIDER & McKINNEY, P.C.
STANLEY G. SCHNEIDER
W. TROY McKINNEY
THOMAS D. MORAN
Are Pleased to Announce
KEVIN D. FINE
Has Joined the Firm as an Associate
Kevin Fine, born in Midland, Texas, March 15, 1967; admitted to bar 1994;
also admitted to practice before the U.S. Court of Appeals, Fifth Circuit;
U.S. District Courts for the Northern, Southern and Eastern Districts of Texas.
Preparatory Eductaion, Southeastern Louisiana University (B.A. 1990); Legal
Education, Texas Tech University School of Law O.s. 1994), American
Jurisprudence Award. Member: National Association of Criminal Defense
Lawyers; Texas Criminal Defense Lawyers Association (Death Penalty
Committee); Harris County Criminal Lawyers Association (Board of
Directors); State Bar of Texas (Criminal Law Section).
10 THE DEFENDER
have much wider forensic acceptability as
reliable methods for quantifying specific
blood alcohol levels.
Other things to look for, that should be
considered, and that may affect the
meaningfulness of an analytical result in each
case include the person's hematocrit level and
whether the person was given IV fluids
(lactate ringers) prior to the taking of the
sample.
Hematocrit is one of the levels commonly
measured as part of a "routine" CBC
(complete blood count). It measures the
quantity of solids in a person's blood. An
elevated hematocrit level would indicate a
greater than normal amount of solids, which
when removed from the whole blood would
reduce the remaining quantity of plasma,
and will frequently result in a higher than
normal overstatement of the blood alcohol
level relative to the whole blood level.
Importantly, a normal hematocrit level does
not indicate that a plasma analytical result is
equivalent to a whole blood result by the
hematocrit relationship. Rather, an elevated
hematocrit level indicates a greater than
normal overstatement.
A sample from a petson who has been given
lactate ringers (an IV fluid containing sodium
lactate) and whose blood is subsequently
analyzed by an enzymatic immunoassay (ElA)
(which is the kind of analysis commonly
performed in hospitals) may, because of the
presence of the lactate, result in an
erroneously high blood alcohol result. This
result occurs because as the enzyme lactate
dehydrogenase converts the lactate to
pyruvate, there is a secondary reaction where
NAD (nicotinamide adenine dinucleotide)
converts to NADH (the reduced form of
NAD with the addition of high energy
hydrogen, biologically known as Coenzyme
1). The rate of production of NADH from
NAD, however, is also the process by which
the quantity of alcohol is measured in an ElA
analysis. Thus, the additional NADH that
results from the lactate reaction is not the
result of the alcohol - even though it will
be reported as alcohol in the test result.
Future articles on blood testing will
concern gas chromatography, a more detailed
examination ofElA testing, and other factors
and considerations in blood sampling, testing,
and analysis.
FalI 2001
APPRENDI IN TEXAS
Does it kill the Texas murder statutes?
BY WINSTON E. COCHRAN, JR.
In the last issue, Mark Bennett discussed
the use of Apprendi v. New jersey, _ U.S.
_ , 120 S.Ct. 2348, _ L.Ed.2d _ (2000),
in federal cases. While no Texas state appellate
courts have yet applied Apprendi, the decision
also could be of great use in Texas courts on
at least three issues: (I) the mitigation issue
in TEX. CODE CRIM. PROC. art.
37.07 1 (2)(e)(1); (2) the "sudden passion"
issue in TEX. PENAl CODE 19.02(d); and
(3) the "safe release" issue in TEX. PENAl
CODE 20.04. These are issues on which
we all should be raising new challenges, based
on Apprendi, at every opportuniry. More oars
in the water definitely will help.
A. What the Supreme
Court Did in Apprendi
In Apprendi, the Supreme Court reviewed
a New Jersey state prosecution where a judge
had increased the maximum punishment for
possession of a firearm under a New Jersey
statute which allowed an increased
punishment if a defendant "acted with a
purpose ro intimidate an individual or group
of individuals because of race, . .. " The Court
framed the question as follows: "Whether the
Due Process Clause of the Fourteenth
Amendment requires that a factual
determination authorizing an increase in the
maximum prison sentence for an offense from
10 ro 20 years be made by a jury on the basis
of proof beyond a reasonable doubt. " 120
S.Ct. at 235
Apprendi drew upon an earlier decision in
jones v. United States, 526 U.S. 227, 119
S.Cr. 12 15 , 143 L.Ed.2d 311 (1999),
although jones was an exercise in federal
statutory interpretation. Due process became
part of the backdrop for decision in jones
because of a principle of statutory
construction: Given competing staturory
interpretations, courts should prefer the
interpretation that avoids constitutional
problems. Apprendi focused on a footnote in
jones stating that "under the Due Process
Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior
conviction) that increases the maximum
penalty for a crime must be charged in the
indictment, submitted to a jury, and proven
Fall 2001
beyond a reasonable doubt. " Apprendi, 120
S.Cr. at 2355, citingjones, 526 U.S. at 243,
n. 6,119 S.Ct. at 1215, n. 6.
Whilejoneswas a federal prosecution, and
therefore was concerned with Fifth
Amendment due process, Apprendi tOok the
next step of applying the rule from the jones
footnote to Fourteenth Amendment due
process, which applies in state prosecutions.
Apprendi stressed that it was dealing with
"constitutional protections of surpassing
importance." 120 S.Cr. at 2348. After a
lengthy histOrical discussion, Apprendi stated:
Other than the fact of a prior conviction,
any fact that increases the penalty for a crime
beyond the prescribed statutory maximum
must be submitted to a jury, and proved
beyond a reasonable doubt. With that
exception, we endorse the statement of the
rule set forth in the concurring opinions in
Uones]: "[Ilt is unconstitutional for a
legislature to remove from the jury the
assessment offacts that increase the prescribed
range of penalties to which a criminal
defendant is exposed." It is equally clear that
such facts must be established beyond a
reasonable doubt. 526 U.S. at 252-253, 119
S.Cr. 1215 (opinion of Stevens, J .); see also
id at 253, 119 S.Ct. 1215 (opinion of Scalia,
J .).
120 S.Cr. at 2363. Thus Apprendi created
three requirements: inclusion in an
indictment of the punishment-enhancing
factOr, submission of the factor to a jury, and
the allocation of proof beyond a reasonable
doubt to the prosecution. Arguably, the first
requirement was not necessary to the decision
in Apprendi, but it is in the text of the
oplOlon.
Four dissenters fretted that Apprendi was
effectively overruling Walton v. Arizona, 497
U.S. 639, 110 S.Ct. 3047,111 L.Ed.2d 511
(I990), concerning factors used to support
the death penalty. See Apprendi, 120 S.Ct.
at 2387-2388 (O'Connor, J., dissenting) .
Justice Thomas' concurring opinion
responded that the continuing viability of
Walton " is a question for another day."
Apprendi, 120 S.Ct at 2380 (Thomas, ].,
concurring) . That "other day," when the thin
ice supporting Walton finally melts away, may
be a day on which the Texas capital murder
statute is before the Court. The dissenters in
Apprendi also noted the tension berween
Apprendi and Patterson v. New York, 432
U.S. 197,97 S.Ct. 23 19, 53 L.Ed.2d 281
(1977). The Apprendi majority really only
returned to a common-sense reading of
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct.
1881, 44 L.Ed . 2d 508 (1975), which
Patterson had attempted to limit. In short,
Walton and Patterson survive simply because
the facts of Apprendi did not require either
of them to be overruled in Apprendi itself.
B. Application to the
Texas Mitigation Issue
The first place where Apprendi should be
applied in Texas law is TEX. CODE CRIM.
PROC. art . 37.071 (2)(e)(I). Under that
statute, a jury is asked to decide:
Whether, taking into consideration all of
the evidence, including the circumstances of
the offense, the defendant's character and
background , and the personal moral
culpability of the defendant, there is a
sufficient mitigating circumstance or
circumstances to warrant that a sentence of
life imprisonment rather than a death
sentence be imposed.
If ten or more jurors answer in the
affirmative, life imprisonment is imposed.
TEX. CODE CRIM. PROC. art.
37.071 (2)(f)(2). If the jurors stalemate and
cannot agree, life imprisonment is imposed.
TEX. CODE CRIM. PROC. art .
37.071 (2)(g). Only if all rwelve jurors answer
in the negative may the death penalty be
imposed. Article 37.071 (2)(0(2). Thus,
subsection (2)(e)(I) plainly fits the mold of
an issue on which a factual determination
raises the maximum punishment that is
available. The factual issue is a comparative
one, but that does not alter its factual
character.
The Court of Criminal Appeals has held
that there is no burden of proof with respect
to the mitigation issue, at least on the face of
the statute. Lawton v. State, 913 S.W.2d 542,
557 (Tex. Crim. App. 1995). In Lawton the
Court recognized that "the burden is
implicitly placed upon appellant to produce
and persuade the jury that circumstances exist
that mitigate against the imposition of death
in his case." Id. The Court went on to state
that it was "unaware of any constitutional
requirement that the burden of proof
continued on page 12 .. .
THE DEFENDER 11
APPRENDI (CONTINUED)
... continued from page 11
regarding mitigating evidence be placed on
either party. and ro the extent that the burden
is on appellant. we note that it is not
unconstitutional ro so place the burden." The
authority cited for that conclusion was Walton
v. Arizona! If Apprendi trumps Walton. then
it follows that lAwton and its progeny should
fall as well.
The Courr of Criminal Appeals has not
yet addressed the effect of Apprendi on the
mitigation issue. At least two Housron
lawyers are raising the issue on direct appeal
in capiral murder cases tried beforeApprendi
was decided. which is permissible with
respect ro charge error even without a trial
objecrion.Almanza v. State. 686 S.W2d 157
(Tex. Crim. App. 1984). Other Housron
anorneys raised Apprendi prior ro erial in a
recent capital murder case. In the wake of
Apprendi. counsel in a death-penalty case
should not only be asking for a jury
instruction based on Apprendi. but should
also be asking ro question potenrial jurors
on the marrer as well. Apprendi should be
considered pan of the "law applicable ro the
case upon which the defense is enrirled ro
rely" under TEX. CODE CRIM. PROC. an.
35.16(e)(2). This is especially handy now that
the Coun of Criminal Appeals has resrored
a meaningful harm review for the denial of
defense challenges for cause. See Johnson v.
State. 43 S. W 3d I . (Tex. Crim. App. 2001) .
What about post-conviction writ
applications in capital murder cases?
Apprendi seems ro fit the "new rule" category
under Teague v. lAne. 489 U.S. 288. 109
S.Cr. 1060. 103 L.Ed.2d 334 (1989). but it
is possible that it could fit within the Teague
exception for " bedrock procedural"
principles. Teague. 489 U.S. at 311.109
S.Ct. at 1076. The limitation in 28 U.s.c.
2254 poses a simil ar problem. On the other
hand. an issue which faces a "new rule"
problem on the federal side is also the kind
of issue most likely ro be accepted in a second
application ro the Courr of Criminal Appeals
under TEX. CODE CRIM. PROC. an.
11.071.
C. The Sitting Duc:k
Section 19.02(d)
Apprendi also alters the landscape for the
defense of "plain vanilla" murder. After
12 THE DEFENDER
Apprendi. a statute that explicirly imposes a
burden of proof on the defense as ro a factual
marrer that determines the maximum
punishmenr available would have ro be
unconstirutional. Texas has such a sutute in
TEX. PENAL CODE 19.02(d):
"At the punishment stage of a trial. the
defendanr may raise the issue as ro whether
he caused the death under the immediate
influence of sudden passion arising from an
adequate cause. If the defendanr proves the
issue in the affirmative by a preponderance
of the evidence. the offense is a felony of the
second degree."
The way Section 19.02(d) is worded. it
appears ro refer ro a reduction of the
maximum rather than an increase. but that
semanric distinction will not save the starute.
Whether the finding of some fact reduces
the maximum punishment from life ro
twenty years. or whether the failure ro find
that fact increases the maximum punishmenr
from twenty years to life. the difference in
terms of years is the same. Which maximum
penalty applies ultimately depends on
whether the answer is "yes" or "no" to a
specific facrual question. Thus. secrion
19.02(d) is unconstitutional in light of
Apprendi. for (WO reasons.
First. Apprendi requires a jury finding with
respect ro a fact that leads ro a higher
maximum. Yet. in Texas. the sudden passion
adequate cause factual issue probably will not
be submirred ro the jury. and hence the jury
will not consider it. unless a defendanr makes
an effon ro raise the issue. This violates the
"jury trial" clause of the Sixth Amendmenr.
applicable through the Fourteenth
Amendmenr.
Second. Apprendi requires that the
prosecution carry the burden of proof
beyond a reasonable doubr. This statute does
not permit a jury finding that will cap the
maximum at twenty years unless "the
defendanr proves the issue in the affirmative
by a preponderance of the evidence. " The
statu te's allocation of the burden of proof is
a due process violation.
A possible third issue. as previously
suggested. is the indictmenr itself. There is
language in Apprendi. though not a holding.
that might suppOrt an argumenr that a
murder indictment now needs ro negate
either sudden passion or adequate cause. or
both. Since an indictmenr is still valid for
jurisdictional purposes even if it omits an
element. the main function of a motion ro
quash would be notice. In most murder
cases. formal notice that the State will seek
more than twenty years probably does not
tell counsel anyrhing new. A pretrial motion
should be filed. but it should arrack the
statute under Apprendi rather than merely
asking that the indictmenr include negation
of sudden passion and adequate cause.
Several assaults on Section 19.02(d). using
Apprendi. have been made in Harris County
courrs by various lawyers. and the starute has
been arracked in a Galvesron County murder
appeal, but no judge has yet relied on
Apprendi and found Section 19.02(d)
unconstitutional as wrirren. Nevenheless.
every arrorney wi th a mu rder case should be
filing an Apprendi motion. Sooner or later.
someone will have the right set of facts ro
make the rough decision palatable. and a
rising tide could lift all the boats.
D. "Safe Release"
Secrion (d) of TEX. PENAL CODE
20.04. the aggravated kidnapping statute.
provides:
"At the punishment stage of a trial. the
defendanr may raise the issue as ro whether
he volunrarily released the victim in a safe
place. If the defendanr proves the issue in
the affirmative by a preponderance of rhe
evidence. the offense is a felony of the second
degree. "
This provision often is called the "safe
release" issue for short. as in Buchanan v.
State. 91 1 S. W.2d 1 1 (Tex. Crim. App.
1995).
In Buchanan and in Williams v. State. 851
S.W.2d 282 (Tex. Crim. App. 1993). the
Court of Criminal Appeals held that
subsection (d) actually created a shifting
burden. similar ro the situation with regard
ro defenses:
"In Williams . .. we held that . .. the
accused has the threshold burden of
production as to whether he voluntarily
released the compl ainanr alive and in a safe
place. i.e. if evidence from any source does
raise the issue the burden of production is
mer. Thereafter. the burden of persuasion
shifts to the State. which must convince the
continued on page 14 ...
Fall 2001
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THE DEFENDER 13
APPRENDI (CONTINUED)
... continued ftom page 12
factfinder that the place where the accused
left the complainant was not safe; and the
factfinder must find the place unsafe to a
level of confidence beyond a reaso nable
doubt for the felony punishment level to be
for a first degree felony."
Buchanan, supra at 13-14. That's good,
but not good enough after Apprendi. The
State now has the burden of ptoofbeyond a
AFTER
HOURS CLE
Social 5:50 p.m. - 6:00 p.m.
CLE 6:00 p.m. - 7:30 p.m.
At Paesano's Lounge
2 U Milam
Houston, "Iexas
Refreshments - Cash Bar
12/20/01 ALR
Chris Samuelson
01/17/02 DiscOIICI:Y
Cynthia Henley
02/21102 Blood
Troy McKinney
03/21/02 Judges Prosemtors:
Dealillg with tbe Good,
tbc Kid, {Illd the Ug{y
HCCLA Panel
04/ 18/02 f(J/VIl Hall Mcetillg
lcadillg iSs/les ill tin'
courthouse
HeCLA Panel
0.,116/02 Dire
Gary Trid1ter
14 THE DEFENDER
reasonable doubt on the "safe release" issue
even if the defendant produces no evidence
on the issue.
E. Other possibilities
There could be many additional uses of
Apprendi in other contexts. One interesting
questio n is whether an increase in a
minimum punishment, such as the "open
container" enhancement for OWl. is
Judicial Happenings
Congratulations
To Judge Mark Atkinson, who has
been elected Chair of the Judicial
Section of the State Bar of Texas.
Approximately 1,500 active and
retired judges comprise the State
Bar's Judicial Section. Atkinson
was also elected to head the Texas
Center for the Judiciary, the
organization in charge of the
state's judicial education. Judge
Atkinson has served as the judge
of Harris County Criminal Court
at Law No. 13 since January 1,
1987. He graduated from South
Texas College of Law and earned
his undergraduate degree from
the University ofTexas at Austin.
governed by Apprendi. Logically, it should
be . The only thing Apprendi explicitly
excluded from its rule was the fact of a prior
conviction. Keep in mind that the Harris
County "charge bank" and rhe various
manuals on jury charges were developed
before Apprendi. In all cases, counsel should
keep an eye our for possible charge error in
lighr of Apprendi.
Finally, you will nore when you read
Apprendi thar Justice Scalia and Justice
Thomas not only were part of the majority,
but also wrote strong concurring opinions.
It is a rare pleasure for defense counsel to be
able to say that Justice Scalia and Justice
Thomas both say rhe defense is right and
the prosecu tor is wrong.
Presidenes Message
... continuedftom page 2
each month. Participants receive 1. 5 hours
of free ClE credit. In addition, Troy,
Cynthia, and T put together the Second
Annual Coping with the Pracrice of law
Seminar, which is scheduled for November
16
01
, . This symposium began last year in
response to the tragic loss of our friend and
colleague, Donald Davis. Once again, this
program will be free and offers atrendees 3.75
hours ofClE credit.
Special rhanks to the officers and the board
of directors for their suppOrt and the valuable
contributions they make at board meN; ngs,
Some deserving special recognition for their
daily effom on behalf of HCClA include
Emily Munoz, Paul Sf. John, Mark Benne[[,
and Grant Scheiner. My hope is that the
work burden of rhis organization, currently
shouldered by a relatively small group of
members, will be more evenly shared by
other members coming forward and
volunteering their time. This would greatly
aid the association in its goal of increasing
our presence and impacr in the Harris
County C riminal Justi ce Sysrem. Contact
any member to become more involved ,
HCClA should always strive to make a
positive difference in the co urthouse
environment and in rhe community at large,
I look forward to seei ng everyone at the
an nual holiday party in December. If you
attended last year, you know rha( (his is a
big event that you should not miss!
Fall 2001
SUCCEEDING ON PROBATION
(And proving it!)
BY CYNTHIA HENLEY
How many times have your clients sworn
to you rhar rhe probation departmenr's records
are wrong - rhar they did not fail to appear
for particular appoinrments? Have they
provided copies of receiprs showing rhar rhey
paid money on rhe day that they are alleged
to have failed to appear) (Maybe it was a day
the client's officer was out sick and rhe
substitute meant to get the file Out later to
note the appearance and insert the paperwork
but it just never happened and the paperwork
became lost.) Ever have a client tell you rhey
had done more community service hours rhan
had been credited? Did he bring his mom
who drove him to the location and picked him
up every time and did she tell show you where
she had been docked pay from work for raking
off time to take J r. to do the community service
one a month?
We know that many errors occur in record
keeping. You can help your client avoid a
revocarion or adjudication with a few tips on
probation record keeping.
I always advise clients who receive probation
to immediarely obtain a spiral norebook,
which is dedicated strictly to probarion
maners, and rake rhe following sreps:
1. Write the name, address, and telephone
number of your probation officer in the
norebook. If the officer changes, make a note
of it.
2. Make a copy of all documents wh ich relate
to probation, including the sheets of rerms and
conditions and any amendments; referral sheets
to community service, rrearment, etc.; money
orders given to the department for payments
of fees and restitution; receiprs from the
department for payments made; paycheck
stubs (especially if paying high restitution
amounts), erc. The originals should be stapled
into the notebook on the date of receipt. The
copies should be kept in a separate file in rhe
event the notebook is lost.
3. Every time you meer with anyone for any
reason related to your probarion, wrire down
who (name); what (probarion meeting,
communiry service work done; trearment
provider, etc. ), when (dare and time), where
(address), why (if there is no documentarion,
wrire down who told you to be ar rhis place) ,
and how, if rhere is a witness such as a spouse
or parent who went with you or provided
rransportarion.
Fall 2001
4. All the information thar is included in
the notebook must be stapled or written in on
the day that it occurs. The srapled items should
not be removed and re-srapled. The notebook
musr be a spiral , not a binder or folder, to
enable you to demonstrate time sequence. You
will nor be able to "add" information in the
future. If you report to community service and
wtite in detailed information on day one, rhen
write relevant information about day two, and
continue this practice, when an issue arises in
month fifteen or year eighr about the
community service that was not credited for
day one, the notebook will serve as persuasive
"evidence" substantiating your assertion that
you participated in communit), service work
that day. The notebook may also be admissible
as a hearsay exception under Rule 803 (5), as a
recorded recollection, or under Rule 803 (6),
as a record of regularly conducted activity.
Regardless of irs admissibility, it will certainly
refresh a client's memory abou t exactly what
s/he did.
Unrelated to rhe notebook, I tell my clients
that there is no "sick me" or sick child excuse.
If the probationer is sick but not in the hospital,
take a bag to barf in bur report as scheduled.
If the probationer's child is sick and requires
care, find someone ro watch the child but
report as scheduled. Technically, the probation
officers have no authority to permit re-
scheduling and if they forget to record that they
gave permission for re-scheduling and an issue
arises in the future, which causes them to
review the records, guess what gets reported to
rhe court as a failure to appear. JUSt report:
and if they forget the barf bag, borrow the
officer's trash can.
Some clients tell me that probation officers
tell them that it is okay to drink a beer or two
bur no gerring drunk or doing drugs. Wrong.
It is not okay to drink on the majority, if not
all, of the probations. Is a beer worth going to
prison?
Finally, for some clients the financial
inability to pay restirurion is an issue ftom rhe
beginning of the probarion. Probationers who
anticipate difficulty in paying their probation
obligations should keep a monthly balance
sheer recording income and expenditures.
Expenses such as dry cleaning, smaller car
maintenance or repairs, children's school
lunches, clothing, etc., are often forgorren
months in the furure, especially if they are paid
in cash. If the probationer is making less than
full payments on restitution and/or fees, he
may be required to explain why in the future.
The bottom line is that probationers need
to be aware of the need to keep independent
records and not rely on the record keeping of
the probation department. Further, most of
the courts are at an all-time high for "no
tolerance" of violations and the client needs ro
decide from day one where his/her prioriries
are. The key to success is to do what they are
told, when they are told, how they are told,
and to record thar they have done it.
A probation officer can be a probationer's
best friend or worst enemy. If a probationer
makes the probation officer's job easy, the
probation officer is likely to try and make life
easy for the probationer. On the other hand,
if a probationer makes a probation officer's job
difficulr, the probarion officer also has the
ability to make the probarioner's life hell. The
choice of how a probationer is created by his
probation officer is frequently made by rhe
choices the probationer makes about how
seriously he will rake his probation obi igations
and commirments.
MARKYANIS
Former briefing
attorney with the
14th Court of Appeals
Announces the opening
of his law practice
focusing on criminal
appeals
1628 SuI Ross
Houston, Texas 77006
ph: (713) 526-6282
fax: (281) 966-1626
e-mail: aturny@houston.rr.com
THE DEFENDER 15
HCCLAANNUAL MEETING
P
tchen,
& JerI)' a f the year.
d Mitch
aOl
A Attorney 0
Da
v1
HCCl
d Mit
chaOl
,
Da
v1
. Vice president & Mike fnax,
CynthIa Henley, C nty supervisor.
Harris County ommu .
$500 HCCLA scholarshIp.
16 THE DEFENDER
Wayne Hill, HCClA President & Sen t
Rod flf ' a or
ney IS, Sen. Ellis, Torch of Liberty A d
war.
Richard & Troy MCKinney.
Thanks to Richard for 1999-2000 Presidency.
Fall 2001
ANNUAL MEETING (CONTINUED)
Fall 2001
. Gerry Goldstein,
Randall Ka!,m
en
, er Goldstein, 2000
& Grant Schemer. G ry k
Keynote Spea er .
. dent-Elect
M Kinney, pre
sl
McKinney,
W. TroY W. Member.
& Richard 0 outstandlrlg
1999-200
THE DEFENDER 17
HOW TO SEAL JUVENILE RECORDS
BY EMILY MUNOl
Under certain a juvenile
respondent whose case has been disposed of
is eligible to have his files and records sealed
pursuant to Tex. Fam. Code, Section 58.003.
The applicable statute reads in pertinent
part:
"(a) Except as provided by Subsections (b)
and (c), on the application of a person who
has been found to have engaged in
deJinquen t conduct or conduct indicating a
need for supervision, or a person taken into
custody to determine whether the person
engaged in delinquent conduct or conduct
indicating a need for supervision, on the
juvenile court's own motion or on receipt of
a certification from the Department of
Public Safety of the State of Texas that the
records of a person are eligible for sealing
under this section, the court shall order the
sealing of the records in the case if the court
finds that:
(1) two years have elapsed since final
discharge of the person or since the last
official action in the person's case if there
was no adjudication; and
(2) since the time specified in Subdivision
(1), the person has not been convicted of a
felony or a misdemeanor involving moral
turpitude or found to have engaged in
delinquent conduct or conduct indicating a
need for supervision and no proceeding is
pending seeking conviction or adjudication.
(b) A COurt may not order the sealing of
the records of a person who has received a
determ i nate sen tenc e for engagi ng in
delinquent conduct that violated a penal law
listed in Section 53.045 or engaging in
habitual felony conduct as described by
Section 51.131.
(c) Subject to Subsection (b), a court may
order the sealing of records concerning a
person adjudicated as having engaged in
delinquent conduct that violated a penal law
of the grade of felony only if:
(1) the person is 21 years of age or older;
(2) the person was not transferred by a
juvenile coun under Section 54.02 to a
criminal court for prosecution;
(3) the records have not been used as
evidence in the punishment phase of a
criminal proceeding under Section 3(a),
Article 37.07, Code of Criminal Procedure;
and
(4) the person has not been convicted of a
penal law of the grade of felony after
becoming age 17.
(d) The court may grant the relief
authorized in Subsection (a) at any time after
final discharge of the person or after the last
official action in the case if there was no
adjudication. If the child is referred to the
juvenile court for conduct constituting any
offense and at the adjudication hearing the
child is found to be not guilty of each offense
alleged, the court shall immediately order the
sealing of alJ files and records relating to the
case."
Sealing the records
The following are my suggestions of how
to seal a juvenile's records. I have successfully
used this procedure in the 313th and 314th
Juvenile Courts:
I . Filing: File your original application in
the courtroom with the court clerk. There is
no filing fee. Stamp as many copies as there
are parties and a few extras "just in case. "
Obtain a hearing date from the court
coordinator or the judge. The date must be
sufficiently in the future to permit you to
send out notice and obtain confirmation of
the parties' receipt of the notice.
Forensic Science Associates
CriminaUCivil ConsultinG Crime Scene Reconstruction Firearmsffool Mark Exams
Complete Laboratory Analysis Lab Accreditation Consulting Forensic Training Classes
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Edward E. Hueske
541 Halifax Lane Coppell, Texas 75019
Phone: (972) 304-8668 Fax: (972) 393-3612
www.forensic-xprt.com
18 THE DEFENDER
2. Notice: Send out the file-stamped
copies of your application along with the
order setting the hearing date to every agency
you have listed on your application. These
must be sent certified mail , return receipt
requested, to permit you to prove service at
the hearing.
3. Proof of Service: Keep the returned
"green cards" in a safe place in your file.
These cards will be turned into the court on
the hearing date and become part of the
court'S file. Make sure and keep a copy for
your file.
4. At the hearing you must:
a. Bring all the green cards and provide
them as proof of service.
b. Bring a proposed order sealing records
so that the judge may sign it.
c. Have the judge sign the order.
The "hearing" is very informal. It consists
of conferring with the prosecutor to make
sure they are in agreement. You and the
prosecutor then approach the bench and
inform the judge that all parries were
notified. You then hand the judge your
proposed order for signature.
d. Obtain enough certified copies of the
order to send one to each agency you made
a party to the application.
5. After the hearing: Send a certified copy
of the order to each agency. These must also
be sent certified mail, return receipt
requested. This order directs those agencies
to send the juvenile's records directly to the
court.
6. In a couple of weeks: You should receive
letters from each involved agency indicating
their compliance with the Court's order. You
should call the court to ensure that the
agencies are complying. If not, go down to
court with the green cards to show that the
non-complying agency received notice and
that they are failing to comply.
7. If you have any questions, please feel
free to call Emily Munoz at 713-227 -2244.
Good luck!!!
Below is a sample Application
for Sealing Records.
1
I Special thanks to Wendell Odom and
Molly Odom for providing me with a sample
Application for Sealing of Records. I use their
sample application as a template each time I
attempt to seal a juvenile's files and records.
Fall 2001
JUVENILE RECORDS (CONTINUED)
Ci\lISr. /\0. _____ _
IN THF. MAITER or IN Tin: OISTRK T COURT
HARRIS COUNTY. TlXAS
J",,''E nrVF.N1I. JI4
1H
J lIOiClAL OlSTRKT
rOR SlALINli RECORDS
TO TI-tE I-IONORABI.E .JlIOCr. or SAIO COURT:
JI IVl:]IiI ILE. PUrsUJJ11 10 f l'XilS Code 9 58.UO.\ applies for en ordrr
aJllik'. in th..-..: .. bdov, '
I. Peillioner cllrrenl l) ;iT 1000 Anyslre":I. In Tcxa. ...
On Fehruary '- ::'0:)0 :<;Ot ..... <\:<; [liken inlO and charged wilh of marijllJntL nn
Allnl 5, ("llUrl ,lfId siiln\!d:.. O('fcrrt'd Ag.rcctnenl. P('lllioner
.. . n'mrklrtl luld"IT nl .. 'i I::..ch l'Ondil;OIl while u1llkr sUJXr.islon of her
propall{)n LourJIO,lIor rhl're ha.-.; he!!'n IlI.l adjlldietlion hCOlfinf On April 5. 11onorable
COliri Hpprm cd Non-Sut!
has rea.wn 10 tJclkw thai The folklwing oflicillis and 3J,cncic',i hold Ii Ie:"
:md rc,;,")rds R'l alin!: 10 lhc abt}\cd.!ii,::ribotd illoJcnl'
I. 1!;uTI:o.( ll lJn t) <\ lImllq - )Ofli":l:
.I.
..
b.
7.
JU\l'nllc
120)
Huuston. ) l'U, 77(}o2
Harm ('c lInl ) l)i ... lml cr"rl
11cll rr.lnliln
j-klu,slon. 1 ex-as
r ("oullty ramll ) jtH'eniit' Oislri..: 1 ('ourl Nl "). J I ")
lli lhe CUlln
Hani ... JU"<:lIIk Pr"h,l lil'n [h:plIl mcnl
Uc(crrc.J Pro';Cculion
3540 \Ve$! [)" lIas
Hnus[(In.lcx/l.s 7701 9
lIouslon

lllliJ 'lI\OIl. I X 77(10:!
l liUTis County SherHl s Ollicl'
I "lUI Franklin
1 (:1( ....' lkp;lTl lnl'nl (,I' Puhli(; Sokry
P (J. 60:\
rAI ISF:NO, _ _ ____ _
IN TIlE \1A ITER or IN THE DIHRICT COURT
HARRJ S CO, l i'lTY. TEXAS
J AI\, .n.f\ 'ENll,.f J14
TII
JUDI CIAL ()1STAI<T
ORDER SEALING FILES AND RECORDS
On 11m II'K: day CIUTle 10 Pc heard PCl ilioT)Cro.s I\ppt icalioll for Scollng and Records
It appears 10 lh..: court lhal Ihi:) should be gronl cd.
11 IS I"HEREFORE ORDERED ,hOI'
The flit':) il nd ft'(;urJs In Ihl'..:asc:: of JANE JlJVEN ILE. l'llnC1:mint! (hI.' m Jl l a fo r
\\hith \>ta5 r laced [lllh\! l:>t:f..:rrcrl Prog,r<lln on Apnl :!()Ou. and
.... hit-h .... a.,. n(ln-SUi ll"(l o n April -'. "20(1 1. sha ll be <;cakd
hll'h o r li"'I",J bdow .-.; lIall :o.l nJ It) Ihi, nlurt ,I II lik:"i and
nrJcrcd '>(' :lk(l
E,a..:h il!;.(; tK:)' or otTlcial hSh:d tll: lo .... :,hilll ddt'll: frolll ll" n ..'O..")m all iude)( 1(1
Ilk' file:. anJ recon:t!ii ordereJ sealed
4. L id, or belo .... s hall l<ply upon i nquiry lhal 110 rc.:ord
s.
Fall 2001
.... jlh rcspl""'C tlo Petiliorl i: r.
Tll1: clelk nfthc court Shilll 'iicnd [l et:rtifi cd (If thi s order 10 lho: following:
I. Harm Counl y Oi stri cl t\llorncy o s Olli ce
JU\l'nik D, .. ision
2.
1"20) rrallkllfl
lJolI:<;lon. TC'(!I$; 770112
County 0ls1ri('1 CierI-.
l:WI franldil1
T c,,-as 170m
Hanis C(llinly Famil\' Juvenile DISlricl Court No. J I";
Clerk (If rllc Court
1115
HouSlOn. fn:l s 77002
4. Ilani,; Counr y Juvenile Prooo!i on Dl,p.. ..H1menr
Ddi.'rred Program
3540 \\'l':.1
HousrOll. 7701Q
5. Police Dcparrmcnl
J' .:!OO lravis
Houslon. TX 77002
6. Clll tnl )' Shcril"f" -s OIl'll:!:
1)0 1 Franklin
Hous ton. Texas 77002
..\uslln, T(:'I:\JS 78772
J. Pur.;(IOMIIIO TO: li:lS Code 58.00J(J). i s M\<: anJ
records [;oncc: rninB lhe hecause Since Aflril 5. l OCli not;
Ca l OttO con\' lcled of a fel on), or :t misdeme:mor In\'ol" ing room! lurpilude;
(b) B\'Cn found 10 havc cnlYtScd in delinquent COf'llJUCI orcooduclindic31MlQ ill MCd
fur s.upt"n;islon: or
(e) (h.-conH: Inc of a pendmg proce.:.-ding (,'lIwiction or
adJudicalion.
WHEREPORE. Ptillion..::r pra} s the coun gr.lnllhl ) a.pplio.::alloo and:
1. Sellnis fOJ hO::8nnl!..
2 Give rt!ilS(Inable nolice of the hearing 10 Petitioner <.mJ 10 each and (lrliciaJ
named In Pil.r.Ig,raph II Ofl hi s nppiLcalion pursunnllo T':-';:I!t Famj1y Cock .5 8.0CIJ.
J. Atkr the on thiS mailer. order ':ll..: h amI lnat n.:,,:urd!-
01 files C4l:lCC'tnlng Inc case 10:
(al Smd 10 Ihis court 0.11 files and ret"oros in ttlt case:
(b) Ddele .111 index rt:fl'n.:ncc::; 10 Lhc fi lC$ and Iccords: anJ
(e) Rep!) on in4uITY Ihm no ro.:cord e.'(i SlS ....lln resp.!'I.llu r elll lonCI
4. clerk of thl' t oun 10 send a ecndicd copy of the: otca!lO\! Md( 1 Ip each
ai!o.:l1cy o( ntTleiul rn.IlT'II..,J in Ihcouler. pursuanllo 58.00.' 01 tho: [, ude.
Rcspo;:clfllllr
SCHNEIDER & Md.:l\'NE'l. P C
rN TIlE: MA TIER or IN THE DISTRJCT COURT
HARRJ!\ ( OllNT\'. TEX.AS
.114TH JlmCIAL. DISTRICT
A,'FIJ)AVIT OF CHILO
BEfOR.E ME. lhc- undersigneJ on appeared JANE
JUVENILE, who afler duly .,.\.ttom slllIed:
I am rI le cbild ",no is ,he SUtlil'Cl of the' cause. loon.' rl-ad lhe
for s.,nl ing Rc..:ords and $\>IcaT 1J\a' :\UalJegwions of faci contained !hertin Ink' Ill\d ..:one!.:!.
Affiant
SUBSCRIBED /IoND SWORN TO B(;FORE Yt E Olllnt _ d3) ot". 2001
7. T e"as Departrm;111 of Public
P.O. Oox '087
Austin. 78772
NOlal!' PubhC'
of To.: .-.;as
Signed Ihis ,h.;, _ ___ da)" of ______ , 2001.
JUDGE PRESI DI NG
CAUSE NO. _____ _
IN THE M"TIEROr IN THE DISTRICT COl'RT
HARRIS COUNTY, TEXAS
JANEJ,tvENllE
ORDERSETfING H["RlNG DATE
IT IS ORDEREU that the ht"urin@on the Appli(, Rlion fOI Records is here-hy SoeT ror
_n.m !p.m, on tilt' _ day of _ _ . 2001. in the courtroom of lhc 31-1
110
DI:o.I O..:1 ('our! .
Pl\";Sidin(!,
THE DEFENDER 19
WINNING WARRIORS
Tribute to the Warrior of the Quarter, Danny Easterling
BY CYNTHIA IkNUY
Danny served as rhe President in
1999-2000 and worked diligently in matters
regarding the courthouse. He has continued
to serve rhe organization and rhe defense bar
with his efforts on committees and projects
sponsored by HCCLA.
Danny has also continued his hard work
in rhe courtroom. He succeeded ina-bench
trial in the 315'b byproviding enough
SODDI (some other dude done it)
information rhat Judge Kent Ellis found
Danny's client not guilry of assault (bottle
rocket to the face of the complainant.)
Danny tried a OWl (combination drugs
and alcohol) and Carrying A Licensed
Handgun While Intoxicated in CCCL # 9.
Client's doctor said client had natural
nystagmus so Danny had Officer e. D. Allen
(a ORE) give him the HGN in court.
Luckily, he agreed with the good doc's
conclusion. The jury acquitted on borh cases
and Judge Wilkerson allowed the client to
leave rhe courthouse wirh his gun.
Recently in project court, Danny defended
a juvenile certified as an adult in a car jacking
where his client was the drivet while the car's
owner was raped in the back seat by the co-
defendant. Danny got a not guilry on the
aggravated sexual assault and 10 years
probation on the aggravated robbery.
In addition, Danny, with assistance from
Casey Kiernan, represented a man charged
wirh capital murder. The client and his cohort
had intended to rob a drug dealer. However,
they went to rhe wrong apartment and ended
up killing an innocent person. Danny and
Casey were able to garher heartbreaking
evidence of rhe extreme physical and mental
abuse their client had suffered at rhe hands
of his parents. The jury rejected rhe State's
cry for rhe dearh sentence and assessed a life
sentence.
Danny has also been successful in keeping
felony cases from going forward . Client
charged in the 262
Dd
with possession of
cocaine in rhe glove box of a car rhe client
did nor own. In grand jury package, Danny
provided an affidavit from the client and
summary of rhe law on uaffirmative links."
Result? No bill! And in rhe 313'" his client
was charged with aggravated sexual assault
of a child. After going through 3 ADAs,
20 THE DEFENDER
Danny was finally able to convince rhe 4'h to
dismiss by pointing out the many
inconsistencies and lack of medical evidence.
HCCLA is proud of our former president,
Danny Easterling, and congratulates him on
his recent successes.
other warriors have
also ac:hieved suc:c:ess on
behaH of their dients
Following five not guilry jury verdicts in a
row mentioned in a previous Call,
David Milcham has continued his success
wirh five more! - OWl in CCCL # 9, assault
in CCCL # 8, deadly conduct in CCCL #
15, and two co-defendants in burglary of a
coin operated machine in CCCL # I. His
successes and hard work on behalf of cit.izens
accused prompted HCCLA to honor him as
their Anorney of rhe Year. Congratulations
David, and thank you for your hard work
and dedication.
David Cunningham won a motion to
suppress evidence in the 174'h in front of
Judge Jon Hughes in a drug case.
David Kiana represented a man charged
with assault on a public servant and
arrempted sexual assault, same incident,
where client attacked a jail guard at 61
Reisner after she got off work . Judge
instructed on lesser Class A assault because
guard was off work. Jury found guilry of
assault but not guilry of anempted sexual
assault.
Randy McDonald and George Murphy
prevailed in obtaining a life sentence where
the State soughr dearh in the 337" District
Coun.
Michael Turner has been kicking butt in
Chambers Counry. He got a 218 pound
marijuana case dismissed based on a bad
"traffic" stop, and in a second Chambers
Counry case. an 18 pound marijuana charge
was dismissed as rhe jury was being seated.
(Cops held dient for 40 minutes at scene of
rhe traffic stop waiting for a drug dog. The
State had already learned that Mike knew
what he was doing!)
Daina O'Kane put our the fire on an arson
case in the 262
nd
with a "nor guilty" verdict.
Daina also had a c1iem charged with failure
to comply wirh sex offender registration laws.
Client was originally offered 25 years TOe.
(He was 15 years into 35-year sentences on
2 agg. sex assaults on children; paroled in
1999). On 2
nd
trial date, client accepted
sweerheart deal- 6 monrhs state jail (where
he had 9 monrhs credit.)
Mark Bennen gets to boast of one of rhe
few appellate wins occurring these days. He
tried (and obviously lost) a discharge of a
firearm wirhin ory limirs case. He appealed
(pro bono!) and won. And this time rhe COA
did not hide a defense win in an unpublished
opinion - read it at Garza v. State. # 01-00-
922-CR. Congratulations!
J.e. Castillo's client walked away wirh a
not guilry verdict in a jury trial in CCCL #
14 where rhe cI ient was charged wirh evading
detention. J.e. raised doubt in rhe jurors'
minds about the reasonable suspicion of rhe
officer to chase the client on foot.
J.J. Paul rried a case ro Judge Janice Law
in which the State had charged a combi nation
OWLS and a MRP based on the DWLS.
Issue was "mistake oflaw," because the term
of rhe suspension had expired. Judge Law
found the client NG (but revoked the
probation based on technicals.) He also got
a big uNG" in CCCL # 14 on a OWl .17!
In a county court in Ft. Bend. Troy
McKinney taught an officer the proper way
to administer field sobriery tests - judge
agreed the cop did not understand the "how
to's" before that date and kept out the video
and testimony regarding the tests. Troy
convinced the jury that the prosecutor's
evidence was definitel.y lacking and they
returned a not-guilty verdict. (Boy, you
should have seen rhe video!). Troy and Gary
Trichter also got a OWl not guilry in Waller
Counry on a case that Troy had previously
convinced rhe judge to gram rhe motion for
new rrial after a jury had convicted - with
another lawyer trying, rhe case.
Judge Ned Richardson had a reasonable
doubt in ruJing on a domestic violence assault
case Kent Schaffer and I tried.
Norm Silverman returned to rhe 337" to
try another large dope case. His client was
arrested with 18. 5 kilos and the State
generously offered 45 years pre-trial, and life+
by the rime of trial. While the jury did not
whoUy buy the duress defense Norm asserted
because rhey convicted, rhey rhought enough
of it to give rhe client only a 20-year sentence!
Norm also had a murder case in rhe I 76'h in
which his client declined a 30-year offer. Case
Fall 2001
WINNING WARRIORS (CONTINUED)
became a crim. neg. hom. after a motion ro
quash was granted and lerter ro grand jury
resulted in a no-bill. Punishment assessed at
20 months SJE
Dennis Smith tried a sexual assault of a
child case for three days before the jury hung!
John Perry won a case in the Supreme
Cou rr: United States v. Bobby Joe Burton,
r ~ M r. Burton had been given a federal life
sentence following his conviction in a drug
conspiracy. The Supremes vacated the
sentence and remanded because the judge
and not the jury had decided rhe quantity
issue. (ala Apprendi v. New Jersey) M r.
Burton was re-sentenced ro the staturory
maximum of30 years. John has the case back
on appeal for a determination of whether the
quantity must be decided by a jury when the
sentence does not exceed the starurory max.
Keep us posted I
Scott Shearer gOt a motion for new trial
granted in the 263'd on the basis of an
involuntary plea, overrurning a 30-year
aggravated sentence. In addition, SCOtt and
Bill Howell gor a motion ro suppress granted
in a child pornog(3phy case in Madison
County.
Jim Sullivan was court-appointed on a
PCS case, which was dismissed juSt before
voir dire began in the 232nJ. He also had a
robbery by threat case reduced ro a Class A
theft For 4/2/$1000 where the complainant
was an undercover narcotics officer. The offer
was made JUSt as voir dire was about to starr
in the 351".
Nancy Botts won a suppression hearing
on a "consent to search" case involving 6.5
Ibs of marijuana in the 248'h.
Jerald Crow tried 3 separate aggravated
35sault indictments in one trial in Coldspring,
/cxas. The numbers did not add up and the
jury acquirred on all charges.
Brian Wlce and Ned Barnett succeeded
in a motion for new trial in Galvesron
County on the issue of ineffective assistance
of counsel. Instead of doing 10 years as a first
offender, client is gerring a second chance.
Brian also chalked up another win , this time
in Btazoria county. Client, charged with
aggravated sexual assault and indecency, was
convicted of indecency. Btian files and wins
a morion for new rrial, and cli ent is back ro
start, but this time the odds are berrer because
of the lesser charge!
Fall 2001
Stanley Schneider demonstrated that we
aren't losing 'em all on appeal. The court
ruled that the admission of extraneous
offenses after the State's failure to give notice,
along with the admission of back door
hearsay warranted reversal, albeit in an
unpublished opinion. This case was special
as Stanley was representing Brad Crow, son
of the late John Crow, without
compensation. Thanks for your dedication,
Stan.
Troy McIGnney has been kicking burr in
Fr. Bend. After hearing 45 minutes of
evidence, a jury rook 3.5 hours to flild his
client not guilty of OWl - after they sent
out a question of whether Troy had the video
suppressed
l
Ft Bend got the message and
dismissed another, easier defense case weeks
later.
Cynthia Cline used information she
discovered in her investigation for a juvenile
charged with sexual assault of a 5-year-old
to convince the State ro back off their
demand for determinative sentencing, and
ro offer a reduction ro assault with one year
of probation.
Poppy Northcutt convinced Judge
Kroeker to gtant a motion to suppress on a
possession of 16 grams. This was after Poppy
had convinced the prosecuror to dismiss the
companion aggravated assault case when her
thorough search of the medical records
showed that the officer reported that his
injury resulted in a substantially different
manner than that charged!
Ricardo Rodriguez kept another client off
of death row. Against Ricardo's advice, client
rejected offer of life semence in a drive-by
gang shooting that left 2 dead and II
wounded. Although the juty rejected the not
guilty plea, Ricardo convinced them that the
c1iem should not be executed despite the
State's demand otherwise. Great job!
Abby Keenan and Norm Silverman gOt a
"not guilty" on a multi-kilo cocaine case in
Judge David Hittner's courr. Abby and Norm
had to really work on this one to get "up-ro-
speed" for their c1iem as they were hired only
days before the trial began (and were denied
a request for continuance) and the trial began
the same day as the WTC tragedy.
Michael Gillman victoriously defended his
c1iem against a charge of aggravated assault
by shooting the complainant, an
acquaintance, in the leg.
Belinda Chagnard earned a not guilty
verdict after 6 days of trial in the 185'h on an
aggravated sexual assault of a child case.
Finally, Bo Hopmann got the big NG on
a DWl in which an officer "mistakenly" told
the jury that he was HGN certified (Bo
helped him remember that he was not), and
they brought in "the crew" (you know - 3
officers ro try to stack up the opinions and
make a little $ - arresting, intoxilizer, and
video). The foreperson was a member of
MADD, and after hearing what she did, she
was a little mad!
Congratulations ro all rhese Winning
Wauiors!
If you have information about your win
or a fellow warrior 's win that you would Eke
included in rhe next edition of The Defender,
please e-mail meatcynthiahenlq@yahoo. com
or call me at 713-228-8500. If you wish ro
nominate someone for recognition in the
Tribute To The Warrior Of The Quarter,
contact me with details.
THE DEFENDER 21
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THE DEFENDER
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801 CONGRESS, STE. 200
HOUSTON, TEXAS 77002
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