*1 346 by involving
ent. In cases death such al
leged poisoning, as heart attack or causes
asphyxiation, may be than causation less See, State, Edge v. 144
medically e.g., clear. 677, 480, (App. 164 679
Tex.Crim. S.W.2d
1942) (judgment reversed where deceased’s testify permitted
physician not that de poisoning, strychnine
ceased not die of as did
alleged, by his but from heart attack induced State, alcohol);
use of narcotics and Reeves v. 560, (App.
131 Tex.Crim.
1937) (evidence where insufficient State prove
failed death caused wound inflict appellant, light
ed of evidence that previously
death have resulted from could State, finger); Baker v. 112 Tex.
infected (State (App.1929)
Crim. S.W.2d 248 showing
failed to meet burden of death by strychnine poisoning
caused where dece symptoms
dent’s also consistent with were causes);
those of death natural see also State,
Carney v. Tex.Crim. S.W.2d (court (App.1928) refusing erred de requested charge that death result
fendant’s packing
ed from decedent’s father cobwebs Yet,
wounds, resulting poisoning). in blood majority allow decision will admis through any autopsy report testi
sion
mony nonconducting of a medical examiner subject scrutiny will on cross-
who not be concerning details of the
examination
autopsy. judgment would reverse the the Court Appeals the cause to the trial remand Welch, Houston, appellant. Mandy for court new trial. Austin, Huttash, Atty., Robert State’s
the State.
ORDER PER CURIAM. parte Ex Michael Lee LOCKHART. applicant’s This affirmed
No. 25669-01. of death on conviction and sentence murder State, v. 847 S.W.2d appeal. direct Texas, Court of Criminal (Tex.Cr.App.1992). The trial court has En Banc. applicant’s be carried scheduled Nov. sunrise, or before motion, applicant By instant seeks in order to allow time of execution Resource Center recruit *2 attorney represent him prepare post elected to file a direct with the Unit- application conviction for writ of habeas cor- ed States Court which him denied 11.07, pus 4,1993. (114 146; under Art. V.A.C.C.P. relief on October S.Ct. 3247). L.Week Applicant presented first his motion for a stay stay, In motion for alleg- execution to the his the defendant court. post The trial court es that he requested denied the relief desires file a conviction noting corpus after no for habeas colorable claim for relief but that habeas alleges relief is he has no counsel. He set forth the motion and no also he has effort present has heen made to been assisted in his invoke the trial claim attor- jurisdiction. neys court’s from Tex.RApp.Pro. See the Texas Resource Center. The just Rule 233. Court has also received a letter from the Texas Resource Center dated November jurisdiction We find we do not have grant requested by the relief applicant. Welch, correspondence, Mandy that granting of such Ex- relief would in no manner ecutive Director of the protect jurisdiction tend to Texas Resource this Court’s Cen- judgment provide enforce ter advised that “the Center should this Court. See Tex. Const., V, you Therefore, with information it Art. Sec. 5. believes to be the relief sought relevant to trial is denied. court Mr. Lockhart’s proceedings.” future She further indicated
IT IS SO ORDERED. duty of the Center was “to recruit and assist counsel for death row inmates in state OVERSTREET, J., dissents. court.” McCORMICK, Presiding Judge, concurs. Finally, she stated: “The existence of an join the Order of the imminent denying virtually execution date it makes applicant’s motion stay impossible qualified for a to recruit counsel. Few However, place attorneys this taking last minute motion in will consider a case without proper perspective, I hereby incorporate some assurance that can become famil- Order of the trial provide court iar with the adequate repre- issued earlier this case and date this being concurrence. sentation before faced with execu-
tion date.”
APPENDIX ISSUE
No. 88-CR-3197 The issue that must be considered is justified whether the defendant has In the 186th District Court request to enable counsel to be County, of Bexar found to him or whether his current status is the result of a deliberate State of Texas Vs. manipulation and calculated of the Texas Michael Lee Lockhart justice system. criminal ORDER represented The defendant was on direct just This defendant has filed a motion appeal by counsel, appointed Doug court Mr. seeking to have this Court issue a 17, 1992, Barlow. On December Mr. Barlow presently execution which is Tuesday, set for Jeffrey informed Pokorak of the Texas Re- 23,1993. November (TRC) defendant was con- source Center that he would file a victed and sentenced to death on October rehearing with the Texas Court of Appeals. Criminal This conviction was affirmed the Texas FINDINGS OF FACT Court of rehearing (847 24,1993. 568). February denied S.W.2d The Court finds as facts based on affidavits appears It that rather than seek habeas cor- part furnished the Court and made a pus date, relief after the defendant this record: my was limited to certiorari ...” proceedings 17, 1992, the same date December not seek re- Barlow indicated he would
Mr. July court scheduled 14. On Ap- hearing before 23,1993. The Court *3 Harrington requested a peals, of TRC Eden the specifically provided almost 5 months for day counsel extension time which proceed- post-conviction to initiate defendant re- recruited file a motion for could be ings. by granted the hearing. That extension was 13, July 1993, the Institutional 15. On 1,1993. until Feb. the and noti- Division received death warrant 14,1993, January checked 2. On TRC defendant. fied the appellate the record. 14, July 1993, very day, the next 16. On 2, 1993, February 3. On Lynn Lamberty by was the defendant visited rehearing was filed the Court Crimi- with previously corre- with whom he had of TRC Stephanie Barclay. Appeals by L. nal 24,1993. May sponded on Neither the defen- 1993, took in the trial February 8, defendant dant nor TRC action 4. the On until almost 5 months to TRC. wrote thereafter immediately prior to his scheduled 1993, February 10, the defendant 5. On date. Phyllis L. Crocker TRC. was visited visit, attorneys signed a form every TRC On 4, 1993, Supreme the 17. On October my visit with indicating relief. Court denied “affirm assisting purpose inmate is 1993, October TRC corre- 18. On attorney-client relating me in matters to the sponded with defendant. no oth- attorney-witness relationship and purpose.” 5, 1993, er November the defendant 19. On of TRC. visited Elizabeth Cohen was February 11, 1993, TRC corre-
6. On with the sponded defendant. 10,1993, the defendant 20. On by Lynn Lamberty of TRC. visited was February 17, the defendant 7. On corresponded with TRC. 12,1993, the defendant 21. On November by Lynn Lamberty of TRC. visited 23, 1993, February corre- TRC On with the sponded defendant. 17,1993, the defendant 22. On November 24, 1993, February Court of On stay claiming he had pro-se filed a rehearing. Appeals denied counsel or to counsel. no access 24, 1993, February TRC Corre- 10. On 19,1993, noti- the TRC 23. On November with the sponded defendant. Macaulay Burr Gregory court that fied the willing to undertake Washington D.C. was 23, 1993, correspond- March TRC subject speci- this case with the defendant. ed fied conditions: 24, 1993, May cor- the defendant 12. On per —pay him hour $50 responded with TRC. 25, 1993, filed May the defendant 13. On himself trips 7-10 to Texas for —pay for with Su- Petition the United States paralegal a Cert. co-counsel or his and either Court, being Daniel represented preme a second counsel at same —appoint Avenue, Boston, Givelber, Huntington rate how does not reflect MA 02115. record counsel, but paralegal came to be a full —appoint Mr. Givelber time the case implication that he entered clear monthly periodic payments —receive motion, through the defendant TRC. peti- days in to file which represented in the —receive “I was states: corpus application tion for habeas by Daniel Mr. Givelber’s Givelber. created, type manipu- and TRC and this permitted prevail by lation should not be CONCLUSIONS any Texas or Federal Court. Both the defendant and the Texas Re- support The record does the TRC source Center have ample had more than purpose claim that their is limited to recruit- time to recruit and obtain counsel to file an ment of counsel. The record is full of in- for habeas relief since his TRC, so, stances where when it elected to do February conviction was affirmed on represented attorneys this defendant. TRC passed 9 months have since that date. sought and received from the Court of Crimi- The Texas Resource Center located an attor- Appeals, nal an extension to file a motion for ney willing just the defendant rehearing. They appellate obtained the rec- days after stay. the motion for *4 They frequently ord. visited the defendant The defendant and the Texas Resource certifying on each occasions that the visit was deliberately Center intentionally have and attorney-client furtherance of the relation- manipulated access to habeas review ship. finally, they prepared And and filed strategy as a matter and not the result of “pro-se” the stay defendant’s for legitimate misfortune. motions, acting and other related at all times The virtually defendant has been in con- legal representative. as his stant contact with TRC even before con- this not, tide, The status of TRC can like the viction was affirmed the Court of Criminal roll in and roll out pur- when it suits their Appeals. pose. They either someone or Neither the defendant or TRC has re- they they don’t, If they don’t. then should quested appointment the peri- of counsel in a any not be they heard issue as have no od of almost 9 only months. It is very on the standing. do, they If they then should be verge of execution that the defendant claims held to the same representation” “effective a need help in representation help that they standards so against often use others. — at lawyer least one willing give under representation certainly And effective re- certain quires conditions but ONLY on legal the eve of that issues be addressed in a timely orderly and manner.
Further, nobody has strategic plans even advanced a mer- Their deliberate have re- ground itorious many sulted in receiving relief that if found other to exist defendants fact, stay. would result in a ruling beneficial under these circum- to the virtually stances defendant. has become automatic and expectations the of defendants and TRC have explained No one has why nothing was long been fulfilled. As as courts continue to done either the defendant or TRC until permit defendants and manipulate TRC to days before his scheduled execution. No orderly justice, the administration of counsel was recruited any nor is there show- will successfully continue to do so. ing attempt at recruitment. No re- ap- This Court does not and will not quest appointment for the of counsel was prove dilatory of such actions that cause advanced during defendant. Yet all of disruption legal system. of our The time, this the defendant and TRC were meet- hereby DENIED, motion for is and ing and corresponding regular on a and fre- strongly urges the Court further that quent basis. meeting, On each TRC attor- Appeals Court of Criminal and the Federal neys that solely the visit was “relat- affirmed Courts do likewise. To do otherwise will attorney-client ed to the ... relationship and permit type perpetuate, this of sham to purpose.” no other proliferate bring and continue to discredit By waiting shortly until before execution disrespect legal system. to our request stay, counsel and a both the defen- immediately The clerk will serve this no- dant dangling and TRC are his life in a by telephone tice and FAX to: perilous deliberately maneuver contrived to pressure legal system delay his execu- 1. The Clerk of the Court of Criminal tion. The emergency defendant is he Appeals
night Mail the Clerk Appeals. 186th 2. The of the District Clerk County of Bexar originated this in Jefferson Since case Attorney of Jefferson County, District of Jefferson Coun- the District Clerk County, Texas all actions ty perform ordered in this Order. reflected Attorney General of
5. The Texas Resource Center 22, 1993. Signed and entered The Defendant Larry Gist /s/ Gist, Larry immediately transmit The Clerk mil also Judge Presiding by Express cause Over- all documents Conviction Sentence 10/25/88 12/2/92 —affd Crim.App. to Lockhart Correspondence, Court 12/5/93 counsel, Barlow, appellate to Lockhart Correspondence, 12/10/92 (TRC) Jeffrey would file informed Pokorak he Barlow 12/17/92 rehearing. *5 (TRC) requests day time in which to recruit Harrington extension of Eden 12/17/92 granted by rehearing. Extension until Court and file motion for counsel 2/1/93 Crim.App. Crim.App. to Lockhart Correspondence, Court 12/21/92 (-21) appellate checked out records TRC 1/14/93 Barclay L. Crim.App. Stephanie in rehearing filed Court Motion 2/2/93 Crim.App. Correspondence, to Lockhart Court 2/4/93 to Correspondence, Lockhart TRC 2/8/93 Crocker) (Phyllis L. visit TRC 2/10/93 to Lockhart Correspondence, TRC 2/11/93 to Correspondence, Lockhart TRC 2/17/93 to Lockhart Correspondence, TRC 2/23/93 Crim.App. reh’g denied Court 2/24/93 — Lockhart Correspondence, TRC to 2/24/93 Crim.App. Correspondence, Lockhart_ . to 3/4/93 Toledo, OH, Virgil Clark, atty, Correspondence, Lockhart_ to 3/19/93 Correspondence, Correspondence, to Lockhart TRC 3/23/93 Crim.App. Lockhart_ to 3/26/93 Clark, Toledo, Virgil atty, OH Lockhart to Correspondence,
(4/1/93 p/24/93 public Correspondence, Lockhart_ to of Indiana defender TRC, Lynn Lamberty, Correspondence, Lockhart to 5/24/93 Cert, Ave, Givelber, Huntington Daniel J. Supreme Court — filed 5/25/93 Boston, MA 02115 scheduling execution for Trial court —Order 10/23/93 7/2/93 warrant, changed custody status was Lockhart’s received death Woods office S.O. 7/13/93 of scheduled because of execution notified in that Lockhart was new Log death row office shows book 7/13/93 by Sgt date Cabeen. Lamberty) (Lynn visit_ TRC 7/14/93 public to Lockhart defender Indiana Correspondence, Correspondence, B/6/93 public Indiana_ Lockhart to defender 3/9/93 opposition Supreme filed_ in Court —Brief 8/24/93 public of Indiana to defender Correspondence, Lockhart 9/1/93 Lockhart of Florida to Correspondence, 9/1/93 public of Indiana to defender Correspondence, 9/2/93 of Indiana public to defender Correspondence, Lockhart 9/7/93 public Correspondence, to Lockhart of Indiana defender 9/17/93 Cert, denied Supreme Court — 10/4/93 (Court Correspondence, App) COCA of Crim to Lockhart 10/13/93 Correspondence, TRC to Lockhart 10/27/93 Correspondence, Lockhart to TRC 11/1/93 11/5/93 (Elizabeth Cohen) TRC visit (Lynn Lamberty) (Lynn Lamberty) TRC visit visit 11/10/93 TRC Trial court 11/12/93 (Bexar) pro date to se motion modification 11/17/93 — recruit, days Request days to to file. allow TRC to recruit counsel. CLINTON, en, Y.A.C.C.P., Judge, dissenting. represent applicant and to proceedings the resultant under Article 11.- summary As the the Court order of indi- 07, including upon proceedings return cates, counsel, yet applicant is without accompanying writ and record to this Court. put early scheduled to be to death at an Thus, morning Tuesday hour next. with- With available assets at hand this Court benefit of counsel he is reduced to judges must courts utilize pro post-conviction petition se his first them to ease current “crisis representing writ of habeas him- representation.” We should not be reluctant grant self because this Court refuses his preserve postconviction resort remedies impending execution so perceived account of some fault may that the Texas Resource Center recruit representative party seeking benefits competent counsel assist and to of those remedies. him. dissent, respectfully urging this Court to *6 stage confront head on “the in crisis representation” in Spangen- State.
burg Group, Study A Representation of of (State Capital Texas), in Cases Bar of Texas, Appellant, STATE at i-ii. v.
Meanwhile, we should consider supporting papers and pleadings in as TURNER, Jr., Appellee. Charlie nature of an extraordinary No. B14-93-00281-CR. relief, thereby invoking the constitutional Texas, original jurisdiction of this Court under Arti- (14th Dist.). V, three, § cle Houston para, pre- as further 4.04, 1, § scribed Article V.A.C.C.P. Oct. we that basis should cause the Court to Opinion Overruling Motion applicant. scheduled execution Rehearing Jan. Further, I would order and direct Rehearing Denied Jan. judge court below to recall its pursuant warrant to Tex. 233; R.App.Pro. authority to exercise its applicant “indigent”
determine whether meaning
within the of Articles 26.04 and V.A.C.C.P.; 26.05, so, if to determine wheth- justice” require
er ap- “the interests
plicant in have of counsel
post-conviction corpus proceeding; habeas and, so, appoint if competent counsel to applicant preparing
aid and assist post-convic- for such writ of
tion habeas accordance with Article provisions Chapter
11.07 and related Elev-