Dallas Criminal Defense Lawyer Blog

Clients of mine who have experienced the criminal justice system in multiple Texas counties are often surprised by how different the process is in each locality. The Penal Code and the Code of Criminal Procedure are the same across the State. However, judges still have a lot of discretion in how they run their docket.

For example, how many resets do you get in a court before you must plea or set the case for trial? What time does docket start? What forms do you need to get a plea done? Does the client have to show up at each hearing?

It's important for lawyers and defendants to know what they are getting into before they arrive. Recently, Dennis Jones was appointed as Judge in the Kaufman County Court at Law. Judge Jones published a short list of protocols for his court that you should know.

1. Defendants must be present at all court settings.
2. Only two resets may be obtained through the coordinator, thereafter see the judge.
3. No resets for plea settings, unless seen by judge.
4. Court costs shall be paid in full at the time of plea.
5. Defendants must turn off all electronic devices.
6. No food or beverages.
7. No shorts, flip flops, or tank tops.

Also, the CCL courtroom is now in the space where the CCL2 courtroom used to be. So the County Court at Law is upstairs, and CCL2 is downstairs. The CCL courtroom is small, and there will not always be room for all the defendants to sit in their during docket call. So you may have to sit in the hall while your lawyer works on your case in the courtroom.

Defendants should still check in with the bailiff, even if they can not sit in the courtroom.

Most criminal defendants never planned on getting arrested. But if you are a forward looking recreational drug user or retailer, It may help to know how much bail money you need to set aside when LEO shows up. I've attached a copy of the Dallas County recommended bond schedule to help you plan ahead.

bond schedule.docx

So you're facing pen time in Texas and you want to know when you are eligible to get out. It's not as easy to calculate as you would think. Different offenses have different rules for parole eligibility, some allow for early release, some require more time be served. What you need is a chart, and a chart is what I have obtained.

First, credit where it is due, I received this chart from Michael Mowla. It's his hard work and he deserves all the credit. Thanks for sharing Michael. Click below and download the PDF version of the chart.

Parole Eligibility Chart 2013.pdf

I used to live in Ellis County and I had a few criminal cases there. Not as many as I had in Kaufman and Dallas, but enough that I quickly learned the Ellis County District Attorney's had little regard for justice or preventing wrongful convictions. Why? They had a closed file policy.

Here's how it went. Client would hire me for a DWI or weed case. I'd go to court and ask for a copy of the police report. I'd be told that they could read it to me (no seriously, they would say this), or sometimes even let me read it. But if I wanted a copy then I would have to file a discovery motion and then they would withdraw all plea offers and force my client to trial. So basically they set up a closed file system to bully defendants into pleading guilty without looking at the evidence. It worked sometimes, clients may not want a jury trial and they may not even want a pre trial hearing, they may just want a plea bargain, but it's hard to negotiate when you don't know anything about the case. The ADA would usually say something like "well, you can ask your client what happened." That's cute, your officer has the ability to stop and take notes, review the video tape, speak to witnesses at the scene. My client is in handcuffs and can't record anything, so yeah, thanks for the great advice.

I thought this closed file policy was ethically dubious. The prosecutor, by hiding all evidence, was asserting that nothing in their file was exculpatory (Brady material), which they had a duty to disclose. Of course, these ADA's seemed to think nothing was exculpatory, in a Ken Anderson way. The closed file policy also showed a complete lack of confidence in local law enforcement's ability to investigate and document suspected criminal activity.

I don't currently take new criminal cases in Ellis County, and they may have changed the policy since I left, but if they haven't it doesn't matter. Governor Perry recently signed the Michael Morton act, which requires prosecutors to turn over evidence to the defendant. The hope is that we can maybe slow down the wrongful conviction machine we have set up with more disclosure. I'm hopeful.

What does the Michael act require? Basically, the State has to turn over what the evidence that is relevant to the case. I know, a pretty radical idea. The State can't try a defendant with secret evidence anymore. People who don't interact much with the criminal justice system probably thought that was already the law, but it's not, at least not until January 1, 2014.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act shall be known as the Michael Morton Act.

SECTION 2. Article 39.14, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsections (c) through (n) to read as follows:
(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall [Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to] produce and permit the inspection and the electronic duplication, copying, and [or] photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements [statement] of the defendant or a witness, including witness statements of law enforcement officers but not including[, (except written statements of witnesses and except] the work product of counsel for the state in the case and their investigators and their notes or report[)], or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that[, which] constitute or contain evidence material to any matter involved in the action and that [which] are in the possession, custody, or control of the state or any person under contract with the state [State or any of its agencies]. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The [order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the] rights granted to the defendant under this article do [herein granted shall] not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize [State or any of its agents or representatives or employees. Nothing in this Act shall authorize] the removal of the documents, items, or information [such evidence] from the possession of the state [State], and any inspection shall be in the presence of a representative of the state [State].

(c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

(d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a).

(e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or

(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness's own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver's license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

(g) Nothing in this section shall be interpreted to limit an attorney's ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver's license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

(i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

(l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.

(m) To the extent of any conflict, this article prevails over Chapter 552, Government Code.

(n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

SECTION 3. The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

SECTION 4. This Act takes effect January 1, 2014.

Judge Wiley will be sworn in as Kaufman County District Attorney on April 22nd at 1pm in the County Court at Law. All are invited to attend.

I began my career in Kaufman County as a prosecutor in Judge Wiley's court. I learned quickly that Judge Wiley will not suffer an unprepared attorney in her court, be it a prosecutor or defense lawyer. Her high standards made me a better attorney.

Judge Wiley is tough but fair (I'll go with present tense from here, since Judge Wiley is still on the bench). She is always curious and interested in the cases and defendants before her. She has compassion, in a very tough love kind of way, for the defendants in her court. For example, Judge Wiley created and manages the successful DWI court program. DWI court helps addict-defendants avoid prison and stay sober with a strict regimen of counseling, treatment, drug testing, and weekly court sessions. It's a lot of extra work for her court, and it shows her level of dedication to rehabilitating defendants.

Judge Wiley also presides over the juvenile docket which allows her to influence the youth of Kaufman County so they don't become adult defendants. Judge Wiley takes an active interest in these cases. She knows the young adults who appear before her. She knows not only what they are in court for, but why. Juvenile cases are often as much about the families (or lack thereof) as the juvenile defendant. Judge Wiley often spends as much time in court talking to the parent(s) as the defendant. Juveniles can be a hard group to reach, but Judge Wiley communicates with troubled youth as well as anyone I know. She cares about these kids, and it shows. She is always prepared and enthusiastic about the juvenile docket and her approach gets results.

There is never any going through the motions in County Court at Law. It never feels routine in the way so many criminal dockets can. It is demanding, which makes it exciting. I am going to miss that.

Our State's highest criminal court recently reversed a marijuana conviction out of Kaufman County Court at Law 2, just in time for 4/20. Whenever I discuss marijuana prohibition I always mention how much court time, prosecutor time, appointed lawyer time, police time and tax dollars we waste we waste prosecuting cannabis cases like this one.

It can take years for a case to move form arrest to appeal, and the whole time you are footing the bill so that the criminal justice system can have something to do (besides prosecute real crime that is). Marijuana prohibition is like an evil version of the WPA. Which reminds me, our lege is in session, so why not call your rep and ask them to support bills like this?

Enough editorializing, on to the case, our case of the day is Abney vs State.

What happened? From the opinion.

A Kaufman County Sheriff's Deputy followed Appellant for approximately one mile before pulling him over for driving in the left lane while not passing. When Appellant turned left onto a crossover to make a U-turn, the Deputy pulled the vehicle over, intending to identify the driver and issue a citation or warning regarding the traffic violation. Appellant was arrested and charged with possessing under two ounces of marijuana.

Appellant filed a motion to suppress evidence, which alleged that the traffic stop was unlawful. At the motion to suppress hearing, the Deputy testified that Appellant was traveling east on Highway 175, the road was straight, Appellant was not passing any other vehicles, and there were no vehicles in the right-hand lane. Kilgore said that a "left lane for passing only" sign was located about fifteen to twenty miles from where he first observed Appellant and that the sign provided the reasonable suspicion necessary to make the stop.

Did you get that? There was a sign twenty miles away that said not to drive in the right lane without passing, so that's why LEO stopped this driver. This feels like a pretext stop. Does anyone think the Deputy was really concerned with driving in the passing lane? Or was LEO trying to find a way to pull this car over and search for drugs?

Texas law allows for pretexts stops, and the transportation code provides a lot of cover for this activity. It's nearly impossible to drive for any length of time without committing some kind of traffic violation, and that's the way the State likes it. They can stop you, search you, and even arrest you, whenever they want.

What's the issue?
The trial court, and court of appeals ruled this stop was ok. The Court of Criminal Appeals discussed whether a sign 15-20 miles away could give an officer reasonable suspicion to stop.

Holding
Of course not. It would be crazy to rule that a sign 20 miles away means you still can not drive in the right lane. How long would such a sign last? Until the Texas border? That's just nuts.

Conviction reversed, and a small victory for liberty and Texas drivers everywhere. What is interesting is that Keller joined in the majority opinion. To quote Kanye West, "I know I got to be right now 'Cause I can't get much wronger." When Keller rules against the State, you can't get much wronger.

From the opinion-

The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a "left lane for passing only" sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.

Economics is the study of scarcity and choices. That is, the world has a limited amount of stuff, so what are we going to do about it? One of those limited resources is law enforcement. We only have so many police man-hours in any given year, how are we going to allocate this limited resource?

Recently, Dallas has seen a rise in the number of family violence related homicides and DPD is facing pressure to "do something". Limited resource, plus choice = a new effort to focusing on clearing warrants for those charged with violent offenses.

From DMN-

In the city's latest move to combat domestic violence, Dallas police will now prioritize serving arrest warrants to repeat offenders and to abusers of victims believed to be in imminent danger.

Prioritizing arrest warrants for abusers who are flagged as particularly dangerous was one change announced Thursday afternoon at a city hall press conference. The chair of the city's domestic violence task force, councilwoman Delia Jasso, said the city is working with Dallas police and local shelters to make changes to decrease domestic violence.

At any given time Dallas has thousands of outstanding warrants for all kinds of cases. DPD has a limited number of officers to serve these warrants and track down these suspects. You'd think that law enforcement would always focus on keeping us safe, and prioritize violent offenders. But, then you'd be mistaken. Government actors and institutions can be as self interested as private corporations, doing what's best for them, not for the public. The focus on previous high profile warrant roundups had been unpaid traffic tickets, not violent offenders.

It's time to pause and reflect on how how screwed up the Texas criminal justice system is. In Texas, class C (tickets) level offenses do not allow jail time as a possible punishment. That is, you could be guilty of speeding without a seat belt with an open container and expired inspections stickers; and no judge or jury could sentence you to a minute in jail as punishment. Texas also has an often ignored Constitutional amendment that forbids imprisoning people for debt.

Still, the Texas traffic tax machine runs unabated by civil liberty concerns. Our State routinely locks up poor Texans in government cages until they break down and pay.

About choices; DPD has a choice, focus on raising money with ticket warrant roundups, or chasing down those accused of violent crimes. For now, they are focused on violent criminals, but it's only a matter of time before the city needs more of your money and those ticket warrants become the priority again. And once again after the media attention on family violence is over, government will choose what's best for it, not for you.

Todd is an expert in medical marijuana and is lucky enough to live and work in a State that doesn't attempt to arrest every person who uses cannabis for any reason. Texas could have experts like this, but they'd be arrested. It's interviews like these that remind me I live in a police state with backwards laws. On to the interview-

1. Give me a short bio.

CAN! Research President, Todd Dalotto has a HBS in Horticultural Research from Oregon State University, Chairs Oregon's Advisory Committee on Medical Marijuana (ACMM), Chairs the ACMM's Horticulture, Research & Safety Committee, and authored The Hemp Cookbook: From Seed to Shining Seed (Inner Traditions, 2000). His vast experience in cannabis science, politics, and public policy includes founding America's first hemp food business (Hungry Bear Hemp Foods), founding Oregon's first medical clinic/support/education center (Compassion Center) for medical cannabis patients, and serving on legislative and administrative advisory committees for the Oregon Medical Marijuana Program under the Department of Human Services and the Oregon Health Authority. Todd is a valuable resource as a teacher, consultant, scientist, and court-qualified expert witness, specializing in Cannabis.

2. How did you get started in your field?

As a devious fifth-grader, I thought it would be funny to choose 'marijuana' as the topic of my first-ever research paper. Upon reviewing books I found in the library on the subject, I found that our nation's founding fathers were farmers of both industrial hemp and marijuana, that cannabis hemp was a major US industry until the mid-20th century, and several other facts you may have heard from overzealous hempsters. My report quickly transformed from a juvenile ploy to my first academically-stimulating project. Unfortunately, my teacher didn't check my sources and gave me a 'D' for making it up. This experience secured my lifetime commitment to the objective scientific investigation of cannabis.

Finding cannabis to be a subject of infinite scientific fascination, I founded our country's first hemp food business, Hungry Bear Hemp Foods, authored the world's first hempseed cookbook, The Hemp Cookbook: From Seed to Shining Seed, and created & developed some of the first marketable hemp food products, such as Hempseed Butter, Hemp Milk, and Seedy Sweeties. I was engaged in non-empirical horticultural research of industrial hemp and medicinal cannabis until field research was made possible with the passage of the Oregon Medical Marijuana Act in 1998.

I began public policy advising when asked to be part of an administrative workgroup for the Oregon Medical Marijuana Program soon after the program was created. This workgroup has since been formalized by the legislature as the Oregon Health Authority's Advisory Committee on Medical Marijuana, which I currently serve as chair.

3. What services do you offer in a typical case?

I offer expert consulting, evidence review & reporting, court appearances, and oral & written depositions in cases involving cannabis. Due to a lack of training in plant sciences, law enforcement officers frequently make errors in gathering and interpreting evidence related to the use & production of marijuana. Evidence reports based upon my careful review of discovery are effective for revealing such errors and usually result in dropping charges or plea deals to a lesser charge. Because cases I work on rarely make it to trial (and thanks to email & teleconferencing) I'm able to work effectively for clients across the country from the comfort of my office in downtown Corvallis, Oregon. For cases that do make it to trial, I'm happy to travel wherever I'm needed.

4. What is something that most lawyers don't know, or are surprised to find out?

Every defense attorney is familiar with the long list of items in search warrant affidavits that are allegedly used to commit cannabis-related crimes. What is surprising to many attorneys is that although such items are usually considered to be evidence of criminal activity, many items are necessary for the lawful use, storage, and production of medical marijuana. For example, an Oregon Medical Marijuana Program cardholder may legally possess 24 oz. of usable marijuana, but if caught with 24.1 oz., the same person could be charged with PCS. Therefore, it's necessary for OMMP cardholders to possess an accurate digital or triple-beam scale in order to assure their legal compliance.

5. In Texas, the law still aims to arrest every person who uses marijuana, for any reason. You live in a state with more sensible reality based marijuana laws. Tell the audience what that is like. Has it improved the community's relationship with law enforcement? How does it feel to have this one small bit of freedom back?

A widely clichéd side-effect of marijuana use is paranoia. I observed a rapid decline in this side-effect with medical marijuana patients since passage of the Oregon Medical Marijuana Act (OMMA) in 1998. With a marijuana arrest every 42 seconds in the US, wouldn't use of marijuana make you paranoid? In all seriousness, the lack of fear of arrest has enhanced the efficacy and reduced the risk of using marijuana for seriously-ill patients, especially for those with anxiety, PTSD and seizure disorders.

The claim that marijuana prohibition causes far more harm to society & individuals than use of the plant itself is becoming less and less disputed. Because police officers, courts, and jails are seen as the perpetrators of these harms, the public trust of law enforcement & judiciary is badly scarred. Shortly after the passage of the OMMA, I began hearing reports of Oregon police pursuing criminals who burglarize medical marijuana gardens, and was relieved by this opportunity to restore public trust in these institutions. Prior to OMMA, marijuana growers were easy targets of criminals of all sorts because illegal marijuana growers wouldn't risk calling the police. Progressive cannabis law reform offers law enforcement better opportunities to truly serve and protect all citizens.

OMMA's passage in 1998 was an exciting opportunity for me to conduct horticultural field research of cannabis for the first time. Although OMMA doesn't provide explicit protections for cannabis research, I've designed horticultural research protocol that operates within the limits of the OMMA. Because the plant & possession limits of the OMMA severely limit the potential for horticultural research, I wrote a legislative concept called the Oregon Medical Cannabis Research Act, which would allow state-licensed research facilities to grow & possess cannabis in amounts necessary for proper breeding & research. Although unsuccessful in the 2011 session, I hope to see parts of it included in a medical cannabis omnibus bill in the upcoming 2013 session.

6. Anything else?

Until recently, any mention of 'medical use of marijuana' or reference to state medical marijuana laws was barred from federal marijuana trials. In a federal case I testified in recently (US v Simmons), the defendant's compliance with the Oregon Medical Marijuana Act was material in the case because in the application for search warrant, the DEA agent referenced the Ogden & Cole memos (which describe the U.S. DOJ's criteria for pursuing medical marijuana growers as 'clearly and unambiguously acting out of compliance with state medical marijuana law') and predicted that when the defendants harvest their crop they will be out of compliance with the OMMA. This caused the judge to allow me to take the stand as an expert witness in this case to testify on the use & production of medicinal cannabis.

The Supreme Court heard arguments in McNeely vs Missouri this week. The issue was whether the 4th Amendment's requirement for a warrant actually applies to DWI blood draws. The defendant in Mcneely refused to give a breath specimen, so the police just held him down and took his blood, which was allowed by statute in Missouri.

This should be a straight forward issue; the State shouldn't be able to simply over turn the bill of rights by statute.. Blood draws are a search, a very intrusive search at that, and we require warrants for searches. Of course, DWI and drug prosecutions are the tip of the spear when it comes to destroying the bill of rights. We've lost more freedom to save dope convictions and DWI cases than we'll ever get back.

The Government in McNeely argued that every DWI is an emergency, so they shouldn't have to get a warrant. That's a pretty broad definition of emergency and it really makes the government look lazy. I'm sure it would be easier to just ignore the 4th Amendment and let the conviction machine run unabated. But that's the point, we require warrants because we can not trust the government to do the right thing. We want to limit the power of government to act without oversight.

Warrants in DWI cases are extremely easy to get, all it takes it a fax machine and a fill in the blank application that any 7th grader could complete. The Government in McNeely argued that waiting 30 minutes was too long, and that the blood evidence would disappear. In Texas, our courts have allowed blood draws to be used against a defendant when the blood draws took place 2-3 hours after arrest. So at least in Texas, there is no emergency for at least 3 hours. That's plenty of time to get a warrant.

Currently the Texas warrantless blood draw scheme allows the police, without any judicial oversight, to forcibly take your blood in certain DWI cases. I've always felt this was unconstitutional and I hope current victims of these vampire tactics assert their rights in court.

I'm proud to announce that the Guest and Gray Criminal Defense Team is opening our newest office in Rockwall, Texas. From our home base in Forney, Rockwall is actually the closest (and nicest) courthouse, so it made sense to expand there.

Tracy Gray and I will be meeting clients in Rockwall and manning the fort. Our Rockwall address will be 104 West Kaufman, Rockwall, Texas, 75087. It's next to a 7-11, which is a pretty great feature.

Free consultations for all over your criminal defense needs. So call today.

When I was an Kaufman County ADA I was assigned to Kaufman County Court at Law. It's where I cut my teeth in K-town, and it's a court I still enjoy trying cases in. Kaufman has two County Courts at law, both courts hear misdemeanor cases and certain felonies (felony DWI and state jail dope cases). County Court at Law also hears civil cases, CPS, and juvenile criminal matters.

Here is what you need to know about the Kaufman County Court at Law if you have an adult criminal case.

1. You always have to appear.

Really, you have to show up if you are a defendant, every time. I know that in Dallas your lawyer can appear for you, but this isn't Dallas. It's Kaufman, and we have different rules here. Court starts at 8:30 and you are expected to check in with the bailiff. There will be a line out front for the metal detector which may delay you some, but if you get to the court around 8:30 you'll be ok.

2. Don't show up to court drunk.

I'm not sure why, but CCL seems to have more defendants arrested for being intoxicated in court than any other. I haven't had a client arrested for being drunk in court, yet. I pity these defendants, but I understand why they are found in contempt. You can't be drunk in court. It's just a bad idea. However, in my experience if someone is drunk at 9AM it's because they are an alcoholic, and being drunk in court is a choice they make because the cost of not being drunk (withdrawal/DTs) is much higher.

If you have an addition problem the time to get help is before you finalize a criminal case. You don't want to wait until you are placed on probation to address your substance abuse issues. Kaufman county has taken a more compassionate approach to addiction recently (we now have a DWI, substance abuse, and mental health probation program). Tackling addiction is difficult, tackling addiction while on probation can is even harder.

3. Don't waste court settings. Hire a lawyer ASAP.

In general, you can reset a misdemeanor 2-3 times before you are going to be set for a dispositive (i.e. trial) setting. If you are really shopping for an attorney the court will accomodate you. However, you should be prepared to tell the judge who you have talked to, and what fee they have quoted. Belief it or not, defendants in the past have told the judge they are looking for a lawyer, and have not actually met with an attorney. That never goes over well. Trust me on this.

4. If you can't afford a lawyer, apply for a public defender

In court defendants are handed a sheet explaining their rights. You are admonished on your right to hire an attorney, apply for court appointed counsel, or represent yourself (BAD IDEA). If you can't afford a lawyer check the box requesting court appointed counsel. You will be sent to meet with the indigent defense coordinator who will determine if you meet the standard for indigency).

5. Bring your court costs if you want to plea.

If you decide to enter a plea bargain (not guilty or no contest) you must have court costs ready when you enter your plea. Court costs can be difficult to calculate, fortunately the clerk will have the total and your attorney should be able to let you know the amount. You have to bring the full amount of court costs or you may not be allowed to plea. Court costs range from $254 to over $450 for DWI cases.

Forney is one of the faster growing DFW exurbs. It has quickly become a hotbed of Kaufman County DWI arrests. I used to get a fair number of DWI cases from across Kaufman County, many DPS arrests on the interstate, and then a fair number from Terrell/Crandall/Kaufman etc. It seems that I'm seeing a greater number of DWI arrests from Forney. I'm not surprised. Forney, Texas is a city seemingly designed to maximize DWI arrests. You can't walk anywhere, and you certainly can't walk to any establishment that serves alcohol. I'm not sure why we have the majority of our alcohol serving-establishments next to the interstate, why old downtown Forney (the most walkable area in the city) remains mostly dry.

Forney has it's own jail, and it is possible to make bail there without being transported to Kaufman. I haven't figured out why certain arrestees are transported to the county jail and others make bail in Forney. Going to jail anywhere sucks, but the Forney jail/police station is brand new and really clean. Much less risk of getting a resistant staph infection than if you are arrested in Dallas.

Forney does not have it's own breathalyzer, so if you take a breath test you have to go to Kaufman. By the way NEVER TAKE A BREATH TEST. Kaufman County's breath test machine is based on 1968 technology. The operator manual admits that today's version of the Intoxilyzer is no more accurate than it was during the Apollo program. Really, don't do it.

If you are arrested for a DWI in Forney make sure you hire an attorney to request an ALR hearing within 15 days, otherwise you lose your chance to fight for your license. Most people don't read the fine print on their temporary license and/or think their license is automatically suspended after 40 days.

Our office is located in old downtown Forney, across from City Hall. If you have a question about a DWI case stop by for a consultation.

You know, I can be pretty hard of appellate decisions I don't agree with. One of my main sources of blog inspiration is outrage at the loss of civil liberties through appellate decisions. It's only fair that I point out when our State's highest criminal court does something right, and today is that day.

Today's case of the day is Leonard vs. State, the Sequel!

What happened?
William Leonard was put on deferred probation for sexual assault. Like most sexual assault defendants Leonard was required to take Sex Offender treatment and counseling. Sex offender treatment includes regular polygraph sessions. Leonard failed some polygraphs and was kicked out of treatment.

Not completing sex offender treatment was a violation of a term of Leonard's probation. The State filed a motion to revoke, and had a hearing. At the hearing the sex offender Psychotherapist, Dr. Strain, testified that he kicked Leonard out of treatment for failing the polygraphs.

The defense lawyer objected that polygraph results are not admissible, the trial judge disagreed and revoked Leonard's probation. The judge believed that the polygraph was part of the expert's opinion, and our rules of evidence allow experts to some leeway to use otherwise inadmissible evidence to form an opinion.

Polygraphs in Texas
As long as I have been a lawyer polygraphs have been inadmissible in court. The science is not sound, and the prejudicial value is extremely high. What can be worse than some State "expert" saying he has scientifically proven your client is a liar? Good luck un-ringing that bell.

Polygraphs are routinely used in sexual assault investigations, especially in he said/she said cases with no evidence. They are also used in sex offender treatment and are a common probation requirement.

Despite a lack of reliability, the system views a polygraph as better than nothing. Fortunately, our State's appellate courts (to their great credit) have kept lie detector tests away from the jury (but strangely allowed "dog scent lineups to pollute our court rooms).

The Ruling
This is interesting. A few months ago the Court of Criminal Appeals ruled on the Leonard case and allowed the expert to use the polygraph to form his opinion. but that they could The defense bar was disappointed, but not entirely surprised. However, last week the Court of Criminal Appeals withdrew their earlier opinion and issued this opinion which again affirms that polygraphs are not admissible, even if used by an expert, because of the unreliability of polygraphs. Great job CCA.

From the opinion-

Rule 703 and Reliability In its first four issues, the State argues that, while polygraph results are inadmissible on their own, an expert who testifies under Rule 702 may, according to Rule 703, base his opinion on inadmissible evidence and, under Rule 705, inform the trial court of the basis for his opinion. So, in this case, it would have been permissible for Strain to (1) testify regarding his opinion of the appellant's honesty while the appellant was in treatment, (2) base that opinion entirely on polygraph results, and (3) because his opinion was based on the polygraph results, tell the trial court of the polygraph results. The State does not ask us to revisit our holding in Romero and, in its brief on rehearing, concedes that the results of polygraph examinations should continue to be inadmissible "for a number of reasons ...."

Rule of Evidence 702 allows "a witness qualified as an expert by knowledge, skill, experience, training, or education" to give opinion testimony based on "scientific, technical, or other specialized knowledge." Rule 703 specifies the bases on which an expert may base his testimony, and specifically allows that "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [relied upon] need not be admissible in evidence."

We believe the State's interpretation stretches Rule 703 beyond its limits. Rule 703 allows opinions based only upon inadmissible evidence if the inadmissible evidence is of a sort "reasonably relied upon." "The use of [the word] 'reasonably' rather than 'customarily' or 'regularly' implies that judicial oversight was intended." While Strain did make the conclusory statement that those in his field reasonably rely on polygraph results, the sole basis of his opinion was the results of a test that we have held inadmissible because it is not reliable. "Total reliance on inadmissible and untrustworthy facts cannot be reasonable. Nor would such an opinion achieve the minimum level of reliability necessary for admission under Rule 702." Rule 703 is not a conduit for admitting opinions based on "scientific, technical, or other specialized knowledge" that would not meet Rule 702's reliability requirement. If the methodology or data underlying an expert's opinion would not survive the scrutiny of a Rule 702 reliability analysis, Rule 703 does not render the opinion admissible. Thus Rule 703 did not provide a basis for the trial court to admit Strain's testimony, and we overrule the State's first four grounds for review.

RobertGuest.com has been redeveloped and is now the home of Guest and Gray Criminal Defense Lawyers. Justia did a great job with the design and I have to say they have again exceeded my expectations. I've already reviewed Justa once, here is the short version: they aren't cheap, but they are worth it. I'm keeping the same url, robertguest.com on the advice of Justia. I was going to switch to GuestandGrayCriminalDefense.com, but apparently it would have offended the Google gods.

Besides the aesthetics of the website what's different?
For the first six years of my criminal defense practice I was solo. I've already discussed the challenges of a solo attorney so let's talk about my partner in crime... er criminal defense... drumroll............ TRACY GRAY!

Tracy Gray
Tracy Gray has been with Guest and Gray from the beginning practicing family and criminal law. Recently, Tracy has transitioned out of civil cases and is now ready to help with all your criminal defense needs. Guest and Gray is the only private law firm in the county with two full time criminal defense lawyers (the public defender has 3).

Tracy prosecuted with me along long time ago for in the Kaufman County District Attorney's Office. I was at her initial interview and she confident for a new attorney. My boss was so impressed with Tracy he made the decision to hire her immediately.

Tracy prosecuted misdemeanors for a few years, rising to the Chief Misdemeanor position before she was promoted to the 86th District Court. Tracy has seen more felony trials than anyone in my office, myself included.

Tracy is amazing at juvenile cases and also has a lot of experience with protective orders. Juvie is a sticky wicket, a strange blend of criminal and civil law that has many traps for the unweary. Tracy navigates this potential legal minefield with ease. She enjoys helping young adults and their families and gets excellent results for her clients.

Tracy and I work as a team to get the best result for our clients. We meet weekly to discuss our criminal cases and appear in court for each other. It helps our clients that we have different skill sets that compliment each other.

Tracy is a great story teller. She can find the theme or narrative in a case better than any lawyer I know. Tracy is also a very patient attorney and really takes the time to understand our clients and their needs. She is passionate about causes as well as cases. She has a low tolerance for injustice and she brings the wisdom of years of criminal law experience to each case. I am lucky to work with her.

Criminal Defense and Firms
Most defense lawyers are solo. I was solo, many of my favorite defense lawyers are solo. Being solo is great, but there is a real benefit to having two sets of eyes on each video. Two people at the same interview. Two people at trial who have known the case from the beginning. Some clients have anxiety when the initially see a new lawyer on their case. Clients are always attached to the lawyer they initially interview with and understandably so. The URL will stay the same, RobertGuest.com, but the approach is different.

Like many suburban Texans I was brought up in a Republican household. The first two political books I ever read were written by Rush Limbaugh. As a young adult I had not heard of libertarianism, but I did hear a lot of rhetoric from the right that I liked; limited government, liberty etc.

I found myself more and more confused at how Republicans supported policies that were the definition of Big Government- drug wars, bans on gay marriage, sodomy laws, blue laws, pornography prosecutions etc. Logically, I could not understand how a political party could espouse limited government and support for the war on drugs in the same platform? How can you be against Obamacare because you oppose big government and against gay marriage? The cognitive dissonance must be overwhelming.

I stumbled upon the answer about a year ago when I read "The Republican Brain" by Chris Mooney. The answer, authoritarianism. Wikipedia can explain this better than I can. Why not copy and paste?

Right-wing authoritarians want society and social interactions structured in ways that increase uniformity and minimize diversity. In order to achieve that, they tend to be in favour of social control, coercion, and the use of group authority to place constraints on the behaviours of people such as gays and lesbians, political dissidents, ethnic minorities, immigrants, feminists and atheists. These constraints might include restrictions on immigration, limits on free speech and association and laws regulating moral behaviour. It is the willingness to support or take action that leads to increased social uniformity that makes right-wing authoritarianism more than just a personal distaste for difference. Right-wing authoritarianism is characterized by obedience to authority, moral absolutism, racial and ethnic prejudice, and intolerance and punitiveness towards dissidents and deviants. In parenting, right-wing authoritarians value children's obedience, neatness, and good manners.

Right-wing authoritarianism is defined by three attitudinal and behavioral clusters which correlate together:

Authoritarian submission -- a high degree of submissiveness to the authorities who are perceived to be established and legitimate in the society in which one lives.

Authoritarian aggression -- a general aggressiveness directed against deviants, outgroups, and other people that are perceived to be targets according to established authorities.

Conventionalism -- a high degree of adherence to the traditions and social norms that are perceived to be endorsed by society and its established authorities, and a belief that others in one's society should also be required to adhere to these norms.

Authoritarians are easy to spot, just listen to any Dallas AM talk radio station, save 1310. They also make horrible jurors in criminal cases, and the bright red counties surrounding Dallas are full of RWAs (right wing authoritarians). Authoritarian jurors want to believe the police, they want to trust the prosecutor. They are not open to new experiences, they have a disdain for uncertainty, they enjoy passing judgment on others and their distrust of outsiders usually works against the defendant.

The authoritarian brain is driven by fear. Fear of change, outsiders, those who are different, inter alia.

Fear-based thinking is one reason we convict so many innocent people in Texas. RWA jurors are scared that the defendant may have committed the crime, so why not err on the side of caution and lock up a potential predator, even though there are a few reasonable doubts?

Authoritarians are also likely to believe government experts and embrace junk science because they are submissive to authority and trust law enforcement. How else could a juror be conned into believing in "dog scent lineups" etc if not already neurologically predisposed to trust the authorities?

Texas is infested with RWAs and they have made a mess of our criminal justice system. Also troubling is that authoritarianism and it appears to be part of a person's neurology, which makes change difficult. Sometimes it takes a truly horrible experience, like fighting to keep a person in prison only to find out they are innocent, to make an authoritarian revaluate their beliefs.