South Texas College of Law, Annotations (Houston, Tex.), Vol. 7, No. 8, March, 1979 Page: 4 of 9
The following text was automatically extracted from the image on this page using optical character recognition software:
March 1979 - ANNOTATIONS - Pag* 3
showman in his own way.
ness. It wouldn't surprise me to
see them find the current Texas
statute unconstitutional. On the
unconstitutional delegation of
authority on the injection. I'm not
saying they will, I'm saying it
wouldn't surprise me at all if they
did. One of the reasons for that is
that they could declare the Texas
death penalty on those grounds
without reaching the ultimate
question of whether or not it is
cruel and unusual punishment.
This they obviously don't want to
decide. Sooner or later they're
going to have to, but they don't
want to and they've avoided it so
What steps do you personally
take to keep a very low recidivism
in your court?
I don't know that I have any
control over recidivism.
Do you lecture defendants who
I've read the Riot Act to some
defendants, but I don't read the
Riot Act to a man I'm sending to
prison. I'll read the Riot Act to
some fellow who I'm fixing to give
probation to if I think maybe it
will help straighten him out, but if
I'm going to send a man to the
joint, that's punishment enough.
He doesn't have to listen to the
Riot Act read by me. I tell a
young man that he's getting
probation that if he violates —
that he's getting his chance and
that's the last chance I'm going to
give him. If he violates his
probation, I will send him to the
A lot of judges will ask a
defendant, before the court, if he
is pleading guilty because he is
guilty and not because anybody
has offered him a deal. This is
said even though there had just
been a plea bargaining agree-
Well now, of course the courts
now require you to put plea
bargaining on the table and to be
certain that the defendant under-
stands the plea bargaining. I
always ask if anyone promised
you anything or told you you'd get
out lightly, other than the plea
bargaining between your lawyer
and the Assistant District At-
torney. I thought that it was
almost starting off on the wrong
foot. He knew there was a plea
bargain in there — if there was a
plea bargain, and of course,
you've always got the case that's
plead without a recommendation,
that's a different ball game. But if
there was a plea bargain in there,
the defendant darn well knew
there was a plea bargain in there
and to have him up there saying
that no one had promised him
anything or told him he'd get out
lightly in order to get him to plead
guilty to me. This seemed like it
was starting out on the wrong
foot. Technically speaking, may-
be nobody promised him any-
thing, because (a) the judge
didn't have to follow the recom-
mendation and (b) the agreement
was with his lawyer and not with
him. I think that's a relatively fine
line for a defendant to under-
stand. And I didn't think it was a
good thing. As a defense lawyer, I
always felt peculiar, to say the
least. I'd explain to my client
ahead of time that "Yeah, this
judge is going to follow the
recommendation," and "Yeah,
I've made an agreement with the
prosecutor, but the promise has
been to me. When the judge asks
you if anybody promised you
anything or told you you'd get out
lightly, you be sure and say no."
That just seems wrong to me.
And I just never have done it on
the Bench. Now, you've got to put
plea bargaining on the table
anyway, so that problem has been
removed in that sense. But
I removed it before you had to
THE PROFESSIONAL LOOK
YOU CAN AFFORD
First impressions are important, especially when
one is just beginning. Norton Ditto understands
the professional image expected in our business
world, and we have created for you our ND
Club. The ND Club is directed toward the young
professional seeking an affordable wardrobe,
whether it be for business or casual wear.
1ST UN p #
Bank of the Southwest Bldg. Post Oak Shopping Center
remove it because it just seemed
Do you feel there may be a
problem when two men are in jail
and compare their sentences for
the same crime. One has five
years and the other guy is in there
Some guys ought to be in there
for five years and some guys
ought to be in there for 20.
Should we standardize punish-
I do not believe in standard-
izing punishment. I really do not.
Let's take two offenses that on the
surface appear to be the same.
Let's make them two burglaries.
Let's make them burglaries of a
warehouse, they're not the same.
Merely because it's the same
offense does not in any manner
mean that it should carry the
same punishment. Maybe one
just left the door slightly ajar and
the guy pushed it open and went
in there and stole a wrench that
was laying on the floor. That's
burglary. The other guy may have
chopped through the roof to steal
dope and 95 other things. Per-
haps he's got a weapon on him.
Just because they are technically
the same offense doesn't mean
that the surrounding circum-
stances are the same. Of course,
the two individuals are not the
same. Maybe the guy who stole
the wrench is a real badnic and
maybe the other fellow's not
anywhere near as much of a
badnic. I just don't agree with the
idea that because they seem to be
the same offense, they all ought
to get the same amount of time.
Some people who commit bur-'
glary ought to get 20 years. Some
people ought to get but two years.
Some people ought to get some-
where in between.
What kind of improvements
would you like to see made on the
Texas Criminal Code?
Oh, well, this wouldn't mean a
thing in the world to you because
you never did live with the old
Code. I much preferred the old
Code to the new Code. The old
"There is no such thing as a technicality of the law. There is the
by-God law or it ain't no by-God law. All we do is attempt to
follow the law. We don't make it. Talk to the legislature and the
appellate courts if you don't like what the law is.
Penal Code to me was much more
reasonable and logical. I don't
like the new Code on self-
defense. Why, I think it's ridicu-
lous to require a man to retreat.
Maybe that's the frontier instinct
in me, if you want to call it that,
but I think that's ridiculous. But
that's the statute, and as long as
it's the statute I'll abide by it. I
think that the way the code is
written concerning insanity at the
time of commission of the offense
at this moment is the biggest
mess I've ever seen in my life. I
think the legislature has allowed
the mental health people to write
a criminal statute and they have
gloriously messed it up. It's a
ridiculous mess. For example,
you have someone who is com-
petent to stand trial but insane at
the time of the commission of the
offense. Let's make that person
additionally seriously mentally ill,
and don't ever confuse the fact
that someone is seriously men-
tally ill with competence to stand
trial, because the two are not the
same thing. Maybe they ought to
be the same thing but under the
statute they're not the same
thing. All right. This person is
competent to stand trial. This
person was insane at the time of
the commission of the offense.
We don't convict insane people in
1312 SAN JACINTO 645-1680
(Directly across the street from STCL)
• Hot Grilled Sandwiches *Po Boys *Etc.
"THE BEST HOT MEATBALL SANDWICH
IN THE NEIGHBORHOOD" - $1.85
3 ViC XEROX® COPIES
OVERNIGHT RATES — 4<t DURING THE DAY
$7.49 PASSPORT PHOTOS
kinko's graphics, inc.
2811 MAIN ST
2368 RICE BLVD
this State and we shouldn't. 1 can
do absolutely nothing with him
but remand him to the custody of
the civil authorities who, in all
reasonable probability, won't do a
shinola with him. If they do
anything with him, they'll send
him up. for 90 days to Austin,
where they'll haul off and give
him a bunch of pills and that's
the end of that. I think that we
waste a whole bunch of time. We
ought to be able to try both
competency and insanity in one
trial, as we used to do. You read
that statute some time. You've
got to read 95 different sections
all put together to try to come up
with what the legislature is
getting at, and I think it's a
Recently somebody was
th murder and he was
insane. He spent three
months in the hospital and then
he was released.
Well, that's not necessarily
evil. But the statute leaves no
discretion in the hands of the
criminal court. None whatsoever.
If the man was insane at the time
of the commission of the offense,
we can't do anything with him
except send him to the civil
authorities. We can do absolutely
nothing with him.
And how would you like to
I think that we ought to be able
to have some remaining jurisdic-
tion. We could have a present
mental health hearing and com-
petency not to stand trial. But the
civil idea of competency and
mental illness is that the criminal
court can go ahead and commit
someone to an institution. Then
the doctors at the institution can
just haul off and cut him loose in
10 days, if you will. I had that
happen out of here a few months
ago in a murder case. We should
bring him back to the criminal
district court. As it is, we can't do
anything about it — nothing.
That's all she wrote.
What do you feel about the civil
proceeding of certifying a juvenile
as an adult to be tried in a
I haven't seen a certification
handled properly yet. I'm not
talking about that they didn't
handle the certification hearing in
the juvenile courts properly, yes.
Let's assume that they did. But
lawyers just don't do anything
Continued on page 6
Here’s what’s next.
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Newspaper.
Dies, David & Bettman, Gerald S. South Texas College of Law, Annotations (Houston, Tex.), Vol. 7, No. 8, March, 1979, newspaper, March 1979; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144386/m1/4/: accessed April 20, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.