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Chief of the criminal defense division

Criminal Law

DWI, Drugs, Assault, Probation Revocation, Sexual Offenses, Theft, Juvenile Defense. Felony and Misdemeanor Offenses in State and Federal Court.


Driving While Intoxicated, DWI and Your Drivers License
Forney, Texas DWI Defense Lawyer.

Juvenile Law

Sexual Offenses, Drug Offenses, Assault and Violent Crimes, Theft, Truancy/School Related Criminal Charges.

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Now that gays are guaranteed the right to marry and protected by the US Constitution, would it be illegal for a county clerk to refuse to offer a gay couple a marriage license? Has Ken Paxton (our admitted felon AG) opened up county clerks across the State to criminal liability with his letter advising them they can not provide marriage licenses to same-sex couples?

Let’s look at the Official Oppression statute for a minute. It’s TPC 39.03 (so no rule of lenity here). I’m going to add some emphasis.

Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor, except that an offense is a felony of the third degree if the public servant acted with the intent to impair the accuracy of data reported to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Section 42.006, Education Code, under a law requiring that reporting.

Well, that seems pretty clear. But, mark my words, NO ONE WILL BE PROSECUTED for these violations. Why? DA’s are elected in Texas, and if a county clerk is an ultra-conservative who wants to deny gays their Constitutional rights, they are elected in the same primary as the DA who would have to prosecute them. No elected DA is going to risk their next election going to bat for gay marriage, or prosecuting a county clerk. Which as a defense lawyer I’m torn, because I’m usually for less prosecutions, but I’m for the Constitutional rights of minorities. There is inverse relationship between political capital and criminal prosecutions, so this issue is going to be theoretical at best. Kenny P should ask his criminal defense lawyer to advise him before he sends out his next letter though, before he gets someone arrested.


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Oh the Blue Warrant, the enemy of all those who are on paper. A blue warrant is what we call a warrant issued for a parole violation. Allegedly, they used to be on blue paper, hence the name.

Abbott’s magic pen recently signed SB790, so on 9/1/15 you will be able to actually have a bond set on if you meet certain requirements. Blue warrants have typically meant a very extended stay in county while the system sorted out your new case (which is the cause of many blue warrants) or the Parole Board decided what to do about your technicals (dirty UAs, missing meetings etc). Bond just wasn’t an option, but it will be soon.

This move should save counties a nice pile of cash. Kaufman County has 19 “Hold For TDCJ” inmates right now, that’s more than any other criminal offense. This bill is parter of a larger Smart on Crime movement, which is a nice way of saying that up until recently, we have been stupid on crime, or more accurately TUFF ON CRIME!. Being stupid, and/or tuff, is expensive. Holding people who pose no threat to public safety is a great way to waste tax dollars, letting people out on bond saves you money, so we only pay to lock up people we are truly scared of, not merely mad at.

Who can get bail set on a blue warrant/parole hold?

I’m glad you asked. To be eligible you must meet some requirements. I’ll just quote the statute and save us some time. Basically, you can’t be the guy described below.

    (1)  has not been previously convicted of:
                   (A)  an offense under Chapter 29, Penal Code;
                   (B)  an offense under Title 5, Penal Code,
punishable as a felony; or
                   (C)  an offense involving family violence, as
defined by Section 71.004, Family Code;
             (2)  is not on intensive supervision or super-intensive
             (3)  is not an absconder; and
             (4)  is not a threat to public safety.


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You’d think we were all watching different videos given the reaction to the McKinney pool party videos. Conservatives and authoritarians lining up to defend Casebolt against the THUGS (which feels like a substitute for a racial slur) and libertarians/liberals standing up for the individuals affected by Casebolt’s recklessly aggressive form of barrell roll Rambo-style policing. One thing to note about authoritarian thinking, and the right/left divide in this country, is that it may be neurological. And your reaction to the Casebolt video isn’t because of what an objective common-sense individual  you are, but how your brain tells you to feel about the video. 

So if you wonder why the facebook debates regarding this arrest don’t actually get anywhere, or why the upcoming presidential race will see millions of tweets/debates/comment wars that convert no one, it may be because we are more hard wired to our politics than we are able to freely choose to be a Libertarian, Green or Tea Party Patriot. It’s also a reason that many a defense voir dire seminar emphasizes striking authoritarians as they enjoy aggression against outliers and are fans of submission to, and violence by, authority.

Is this a turning point in our national debate over modern policing? 

I can’t remember the last time the public cared about a police video that didn’t show a shooting or beating. I can’t remember the last time the media focused on an overly aggressive wrongful-detention and threat of deadly force. The public may understand how militarized/”obey or die” policing is dangerous, but there is a cost to the thousands of daily constitutional violations that go unnoticed. How many illegal searches and seizures are there every day? How many bullshit terry stops and pretext racial profiling stops involve the made up scent of marijuana as the reason to destroy a car? Why should we support cops who throw suspect on the ground? We need better laws for the police to enforce, and we need better ways of enforcing those laws.

Officer of the Year

I was not surprised to learn that Casebolt was an “Officer of the Year”. Remember that John Bradley and Ken Anderson were both named by TDCAA as “Prosecutor of the Year.” Law enforcement organizations too often hold up the most oppressive authoritarians as role models, while restraint, mercy, and respect for the constitutional rights and dignity of the individual go unheralded. . The officer who makes the most arrests is a hero, when those arrests may be for victimless crime, and destroy many of the individuals arrested. TDCAA used John Bradley as an ethics teacher, a man who fought to keep an innocent defendant in prison.

We have cultural and systemic issues to address, and this video points just how hard that will be since the public is so sharply divided on what it means, who is right, and what should be done. Thugs vs. cops is a false choice, you can support the police without support all actions by cops, you can be against hooliganism without labeling black youths as “thugs” and enjoying watching the police tackle them.

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There is some general confusion about the role of polygraph examinations in criminal cases. Let’s cover some basics. Polygraphs examination results are not admissible in a criminal trial. There was one really bad appellate opinion that seemed to open the door to that possibility, but it was reconsidered. So passing a polygraph really doesn’t help you in a criminal trial.

Polygraphs can not detect if someone is lying. Instead they monitor blood pressure, pulse, respiration etc. The idea is that when you lie you body has a stress response that can be measured as “deception”. However, there are a lot of reasons someone could have these exact same symptoms while telling the truth.

So why take one?

You shouldn’t (at least not without a defense lawyer present), and if you are speaking with a detective about a criminal offense, you must hire a lawyer immediately. Polygraphs can be a set up to get you to confess, a ploy used to trick you into walking into the police station without a lawyer to help you.

Here is a typical situation in which a polygraph is offered by a detective. Suspect Bill is accused of indecently touching a child. There is no physical evidence, but the child made a statement to a relative. The police know this case is weak without a statement, so under the guise of “getting your side of the story” they might ask for a polygraph to “clear you of these allegations.”

Post arrest polygraphs can also be used by prosecutors to help dump shit cases. If the police arrest someone on a serious charge with flimsy evidence, a prosecutor might want the defendant to pass a polygraph so the prosecutor can then reject the case while minimizing anger from the family of the complaining witness. Grand juries are also utilized for a similar function when prosecutors work to get a case no-billed.

Detective use polygraphs as a way to interrogate you

Here is the deal folks, you will never change a detective’s mind about your guilt or innocence by giving a statement, or taking a polygraph. Confirmation bias is real, if a detective goes into your interview thinking you did it, no matter what you say they will still think you did it. Same with a polygraph. So what’s the point? To get you to confess. How do they do that? Here is a typical scenario.

A detective calls and tells you that you are being accused of sexual assault, but they you to take a polygraph to help clear you. So you show up and they strap you in to the polygraph machine. The detective reminds you that you are here voluntarily and can leave at any time (they do this to avoid reading you your Miranda rights). Then you answer some questions. The detective gets upset and tells you that you either failed the polygraph, or the results are inconclusive. The detective says he knows you are lying or holding something back, and if you do not tell him the truth he will tell the judge and prosecutor that you lied. The detective will then tell you that only by telling the truth now can you help yourself.

Think about what a great move this is for detectives; they get a suspect to walk into their office without a lawyer. They strap the suspect to a machine, then claim the machine says they are not being honest and then ramp up the pressure on the suspect, all while telling him he is free to go.

Don’t be a victim of a fake polygraph. NEVER agreed to a interview or polygraph without a defense lawyer representing you.

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This is a question we get a lot at Guest and Gray. Clients want to know if character reference letters will help their case, or help them get a better plea offer. The answer is “it might help, but it can’t hurt”. I tell my clients that they should get as many letters as they can from the most credible/important people they know who are not relatives (letters from mom don’t really help). And that at the right time we might share these with the prosecutor (the timing is more art than science).

Let’s start with misdemeanors- if you are facing a DWI or pot case most prosecutors won’t think you are a scumbag criminal anyway (the exception being noob true believer ADAs), so there is not a lot of room to improve your character in their eyes because they should understand you just got caught in the unlucky lottery of the criminal justice system. One challenge is that misdemeanor prosecutors typically have hundreds of cases at any given time, and it can be hard to get them to review much new information on any one case.

Still, it can’t hurt. Will it get your case dismissed? No, but it can help move the needle a little in plea negotiations. For example, I’ve had cases where I was looking to get a deferred offer down to a pre trial diversion, and character evidence has helped in those situations.

Felony cases are different and I’d say the opportunity to help in those situations is greater, mainly because there is so much room to negotiate downward on a felony plea. Most prosecutors understand how serious it is to convict someone of a felony, or plea them to felony probation with a conviction (“straight probation”) and are willing to consider background information because of the gravity of the charges. Finally courts usually grant more time and resets to felony cases in the areas I practice, so a prosecutor may have more time to review information on a case. This is very court specific (for example we usually have more time on a Dallas/Kaufman County felony case than on a Rockwall felony case).

So yes, you should get some character reference letters together to share with your defense lawyer. At Guest and Gray we have also gone to issuing character background packets to our clients, so they can help us tell their story and explain some of the good things they are doing in life (working full time, going to school, volunteering, taking care of grandma etc). With this information clients have a chance at being considered more than an offense/criminal history/case number to the prosecutor.

If you are facing a criminal charge be ready to help your lawyer explain who you are, and why this charge you are facing shouldn’t define you. Obviously this works better for victimless crimes than say, agg assault with a deadly weapon, but the idea is the same. If your defense lawyers can humanize you with the ADA, and take you from being a “criminal defendant” to a human being, then you have made a lot of progress.

Prosecutors can be very resistant to this type of information, many develop thick skins and cynical disposition from hearing tales of woe from the defense bar. Some can’t even accept the idea that but/for the accident of their birth they could be the defendant they are looking down up today. Still, it never hurts to try and I’ve never had this type of information hurt a case. At worst, it will just not help.

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DMN has a story alleging Dallas DA Susan Hawk has struggled with prescription drug abuse and may continue to do so this day. The story links her struggle to erratic behavior in office (firing top assistants) and alleges a trip to a rehab facility in California. There seems to be a certain irony when DAs or ADAs are accused of potentially illegal behavior. Being addicted to pills is not always a criminal offense. Many people with chronic illness become reliant on the medication it takes to function normally. They have legal prescription but their bodies can not cease taking these drugs without repercussion, physical or physcological.

Having represented a lot of addicts I can tell you that going to treatment does not “cure” them. It can give them tools to succeed, but addiction and addictive personalities are something that come from biological and psychological underpinnings that are very difficult to change. Rehab helps many, but some still struggle even after many trips to rehab. Thank your DNA and brain chemistry that you not are predisposed to addiction before judging a “junkie” or “pill popper”.

The focus on treatment instead of prison is a welcome change in recent years, but we are still using the criminal justice system to address a public health issue with an “abstinence only” model when it comes to use and probation. There is a reason a dirty UA is called a “technical” violation even though it’s evidence of a crime, because they are so common we can not afford to revoke all those who fail a piss while on probation. And because probation is a shitty way to help addicts.

In Texas we still largely criminalize addiction, being caught with pills without a prescription can be a misdemeanor  or felony depending on the amount, and there is no defense for driving while intoxicated for those who are taking only prescribed drugs. We are so tough on crime, that we criminalize those who seek treatment for a condition (e.g. back pain) and then become addicted or reliant upon those treatment to function. What happens when someone gets addicted to opiates after a car accident, and then loses their health insurance? Addiction finds a way.

If Susan is struggling with prescription drug abuse how can we best help her, and others like her? Arrest? Put them on probation? Or maybe, just maybe, if being addicted to medication wasn’t seen as a weakness, or a crime, we could reach more people and help them manage their addiction in a medically safe way, or turn away from it altogether? Instead of being a shameful thing to hide, we could view addiction like the flu, or any other illness.

I hope that instead of a rush to judge Susan the people of Dallas will realize that we all know addicts. They deserve our compassion and assistance, not handcuffs, cages, or probation. They are not beneath us, or different than we are. They are your neighbors, your friends, your doctor, lawyer, your elected officials.

We need to move to an era of harm reduction. In a State where even DAs struggle with alcoholism and potentially even prescription drug abuse, it’s time to consider that maybe our criminal justice system isn’t the place to treat addicts. In fact, it’s because we use the criminal justice system to “catch” addicts we force others who need treatment to hide their condition and not seek help. The millions upon millions in tax dollars we spend on jails, lawyers, cops, hearings, appeals etc could all be better spent on doctors, counseling, and treatment.

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Our State’s most electable citizens have been hard at work protecting Texans from the plague of frivolous lawsuits that were destroying the very fabric of our State. Without our State’s tort reform laws in place who would be the voice for All State, Farmers, or other multi-billion dollar corporations as they face the wrath of regular citizens looking to be compensated for their injuries?

Now that we have effectively granted immunity to the healthcare industry and Big Insurance let us focus our tort reform energy on the criminal justice system. It’s worth repeating that prosecutor in Texas are the most powerful and least accountable members of the legal profession. They can unilaterally decide someone is guilty and convince nearly anyone, guilty or innocent, to plead guilty rather than face the rigged game we call a criminal jury trial. Let’s look at some tort reform ideas that could serve the criminal justice system.

Caps of Damages

In the civil tort reform world they recognize that caps on damages can help dissuade a frivolous lawsuit. For example, if a doctor shows up drunk to surgery and accidentally kills grandma, the pain and suffering of the family and granny is worth only $250k. Which means it’s hard for someone to sue over dead granny because of the cost of litigation (that’s by design btw).

In Texas the range of punishment reflects the damages that a defendant pays for violating anyone of our State’s thousands of criminal offenses. Possession of .0001 grams of cocaine is a State Jail Felony. Really, some idiot thought that we should threaten people with prison who party like W and Obama did.

What’s the point of this horrible sentencing scheme? To shake down defendants to plead with a horrible range of punishment. On your first go round on a State Jail Felony you have to get probation, so this has turned into more of a make work project for local governments, but still, why should anyone be looking at 2 years in a cage for possession less than a gram of anything? We are talking about possession, not use, or being under the influence, or committing a real crime (one with a victim), but just having less than a gram of a substance in your console. More than a gram? 2-10 buddy.

Misdemeanor sentencing options are equally inane. That joint in your backpack, up to 6 months in the county jail. Wrote a check that bounced? 6 months in county jail? Stole a $51 worth of DVD’s from Target, up to 6 months in county jail. Bar fight, up to a year in county jail. Fail to grovel in front of the police as they arrest you- up to a year in county for “resisting” by actually struggling while they tackle you. This is nuts. Why should we lock anyone up for 6 months for Class B misdemeanors? We all only have so long to live, and throwing someone in a government cage is taking away our most precious resource, time.

Misdemeanors are among the most “Who give’s a shit?” of all offenses besides State Jail Felony dope cases. Prosecutors use the horrible punishment ranges to make probation look like a good deal and avoid trial setting on junk cases.

So if we want to quit convicting the innocent we need to cap damages on those who choose to exercise their Constitutional right to trial. I know these are just individual and Constitutional rights we are talking about, but they should at least as important the right of Big Health and Big Insurance to socialize their losses and avoid responsibility for malfeasance.

If a crime has no victim it should be fine only. We are merely criminalizing taste and preference, not actually protecting anyone from being harmed by a defendant. That would get the consensual crimes and hot checks into ticket court, where nonsense cases belong.

Summary Judgment-

Summary judgment in civil cases is a way to get shit cases thrown out early. It does not exist in criminal law. Judges can not screen the State’s case and see if they have enough evidence to go forward. We have no rules for speedy disposition for lesser cases like 91(a) that allow for a speedy trial in civil cases under $100k. Those rules are designed to minimize cost so that parties will get to trial quickly. We had a speedy trial act in Texas, but the pro conviction Court of Criminal Appeals decided to rule that law unconstitutional under some “separation of powers” idea that we should never limit the power of the State to convict on their schedule. We need a law to dismiss all cases when there is not clear and convincing evidence of guilt. Let the judge decide if the State has enough evidence to go to trial. That would be worth more than the grand jury system we have know (which is really a cover so that prosecutors can avoid making tough decisions, as well as prosecuting whoever they want whenever they want).

Instead of a summary judgment hearing we try to maximize the cost to defendants to go to trial by wasting their time. Most courts require the defendant to appear at every announcement setting. Why? So that they miss work and get sick of waiting around the courthouse for hours and plead guilty. There is no reason to make people sit in the hallway for a court setting that is not contested other than to put pressure on them to finalize the case. Why not make the police appear at every setting? Or even the prosecutor?

Loser Pays

How about loser pays? If the State wins at trial, the defendant pays with his freedom, not to mention the cost of litigation and all the time he wastes waiting to go to trial. If the State loses nothing happens. Really, there is no accountability for bringing a junk criminal case to trial. Prosecutors know that if you scare a jury with enough BS they might just convict anyone, so why not roll the dice? But if the State had was held responsible  for trial decisions that would change. Make them pay the defendant for the cost of fighting a case where reasonable doubt exists, and they would be more selective about what cases they took to trial.

I’ll be waiting for TLR to take up the banner for criminal justice tort reform, until then we can keep convicting the innocent.


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I get it, hiring a defense lawyer is a difficult decision. Clients are about to make a choice that may affect the rest of their life, and they want some degree of certainty before picking one of us. Many clients ask what our firm can guarantee if hired. I explain our process and how our team defends cases. You know, the process and hard work that leads to a great result (sometimes). But what clients really mean is they want a guaranteed outcome, which we don’t offer, and would it be unethical if we did. The next question is usually what are the odds of a certain result, and until now, I’ve never had those numbers handy.

But for 2014 our firm went through our closed cases (cases that were pled, dismissed, no billed, diverted, rejected etc; basically any case that ended in 2014) and came up with the following stats. These totals don’t include traffic tickets because those are more about revenue generation for local governments than actual criminal law.

Closed cases for 2014 (non traffic)= 84.

Total cases closed – 24
Pled to Obstruction of a Highway- 5
Dismissed- 4
Probated as Charged- 12
Reduced DWI Probation- 3
Aggravated Sexual Assault-
Total cases closed- 3
No Billed- 1
Deferred Probation as Charged- 1
Reduced to Indecency Deferred Probation- 1
Aggravated Assault
Total cases closed- 2
Dismissed 1
Class A Deferred Assault 1
Assault Family Violence
Total cases closed – 6
All 6 were dismissed, 5 were pre trial diversions. One was just dismissed.
1st Degree Drug Possession
Total cases closed- 3
Deferred Probation- 2
Dismissed- 2
Possession of Marijuana-
Total Cases Closed- 8
Pre Trial Diversion- 4
Dismissed- 3
Deferred Probation- 1
Motion to Revoke (MTR)
Total Cases Closed- 10
Time Served Sentence- 4
Minimum Sentence (TDC/State Jail)- 3
Back on Probation (MTR Dismissed- 3
I’m proud of our firm’s results. We had no client go to prison who was not already on probation for a felony (that is, only MTR clients went to prison). We also had no one get convicted of marijuana possession, which is awesome (no victim = no crime).
Personally, nothing is worse than going to court on pot cases and trying to act like this isn’t the biggest bullshit time-waste cluster of a law. Most prosecutors, except for a few true believer/”OMG I GOT A BADGE LETZ GET THE CRIMINULZ!” types know these pot cases are fucking ridiculous, which is one reason the weed plea offers seem to get better every year. That’s a plus, but let’s just pass a decrim bill already so I can quit repping young adults with a joint in the console.
I should issue a disclaimer that past results don’t mean anything for your case. Really, we won’t guarantee a result, and if a lawyer does, that’s a sign they are shady and you shouldn’t hire them.


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They say an ounce of prevention is worth a pound of cure. Whether you measure you favorite chemical indulgences in grams or ounces you need to take some basic cell phone safety precautions. First, a disclaimer, a warrant and a dedicated forensic technologist can find pretty much anything on your IOS or Android device (Blackberries are the most secure phones available, but who wants to use a grandpa phone with real buttons?). But, with the right settings/apps/common sense you may be able to get through most traffic stops and common police encounters without getting yourself or your friends in more trouble than the initial detention.

How does a law enforcement officer (let’s call him LEO) use cell phone data? The most common way is when you are arrested and the officer just picks the phone up and starts reading your texts to see who your dealer/connect/reup is. The officer may also answer your phone or send texts to try and generate some more offenses/arrests. Now the Supreme Court has held that cell phone data is protected and the police must have a warrant to search your phone, but Constitutional protections tend to find exceptions (we have a drug war to fight, and most judges are on the side of the Government), also most snitch deals are never seen in court and LEO may look at your phone anyway just to see who is in your network of friends without intending to use the evidence in court. On to the tips.

On to the rules-

1. Encrypt your phone- Encryption turns your cell phone data into nonsensical unintelligible gibberish, similar to a Rick Perry speech. Without the password, it’s very difficult to make this data useful quickly. Which brings me to number 2. The good news is that the new IOS automatically encrypts the data with IOS 8, and it’s easy to do on Android devices (but it may make your phone buggy).

2. Have a password– Really folks, you need a password on your phone. I know it’s a pain in the ass to log in everytime you want to do something, but do you want your friends snooping on you photos/late night sexting anyway? LEO loves reading your text messages and setting up your friends for fake drug deals. A password is the bare minimum you need to keep prying eyes away from your data.

3. Don’t talk about illegal activities via text, especially with strangers– If you get a random text from someone who you don’t know that “met you at the club” and is looking to score, that’s LEO. Don’t be that easy to catch. If you are not 100% sure who is texting you, do not respond. If you are mostly sure and it’s about something potentially illegal, don’t respond. Remember kids, the police can use you friends cell phones to bust you, and they will.

4. Use texting apps that have privacy features. Cyberdust is a good example, it will deleted your texts off of the receivers phone. Texts are forever, and the statute of limitations for drug cases in Texas is at least two years. That’s a long time for LEO to flip one of your friends.

5. Consider getting a VPN. A VPN will hide your IP address and keep your comings and going online a secret. I like them for public wifi safety (I would suggest any lawyer handling client data online use a VPN in public) and to make creepy advertiser tracking more difficult.

6. Don’t consent to a search of your phone. If LEO asks “Can I look at your phone” your answer is always no. Make them get a warrant, don’t be so easy to prosecute.

7. Download Waze. Waze is a crowdsourced driving/traffic/map app that also alerts you to LEO’s presence on the roadway. Waze will not only alert you to upcoming controls, it’s crowd sources so you can let others know where the fuzz is hiding. LEO hates Waze because it cuts into their citation/traffic tax generation. LEO hates it = you need it.

Bonus – Don’t let your car smell like weed. Not really related to cell phones, but it’s my #1 piece of advice for marijuana enthusiasts in Texas. The “odor of marijuana” is an automatic search of your car. So febreze your ride yo.

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I received my first jury summons since moving to Kaufman County. It’s the first I have received in at least 10 years. I must be on some kind of “Do Not Call” list for potential jurors (let’s call them PJs). If you have jury duty in Kaufman County, you get a postcard with instructions to call the Friday before trial to see if the case is still going. I did, and it was. Monday was a holiday, so I showed up today ready to participate in a jury trial for the first time as a citizen and not a lawyer. It was a criminal case, and yes a defense lawyer can serve on a criminal jury. He/She/Me will likely be struck by the State (each side gets 10 strikes in a felony case, with some exceptions). You can be struck in this manner for any reason except race/religion etc. When the State tries to strike all the say, black members of a jury, the defense objects under a Batson challenge. 

As for being struck for cause, that can happen if you are insane, a felon, or have a bias or prejudice you can’t get over that relates to the case. For example, the State will ask who doesn’t like cops or the criminal justice system, or if anyone knows the witnesses/lawyers/defendants. Some judges will go a long way to rehabilitate a PJ. That is when a PJ says they have some bias, but the judge will ask the potential juror questions until the PJ  says “I can be fair and follow the law”. That’s the magic language that can allow biased jurors on a panel.

Unfortunately my panel was excused since the defendant a) got in a car accident this morning and b) a plea agreement was reached.