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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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One of the stranger local practices in Kaufman County is the requirement of paying court costs up front in misdemeanor cases. That is, you are supposed to pay court costs on the day you plead guilty. This local preference is often a requirement to enter a plea, with some exceptions and variation among our County Courts. It’s the only county I practice in that has this policy and it’s one I’ve never understood.

I have not taken court appointments for a while, so it’s less of an issue for my clients who can usually get a few hundred bucks together on the date of the ple for costs. However, for indigent defendants paying $261-$460 at the time of plea can be impossible. Worse, indigent defendants have even gone to jail to “sit out” court costs if they did not bring them to court.

Recently Etta Mullins, widely regarded as the worst criminal judge in Dallas County when she was on the bench, was reprimanded by a special court of review for the same practice, inter alia. The opinion talks about (see Charge VI)  the role of the judge in accepting plea bargains and/or requiring costs or fines up front. Basically, it’s bad and you shouldn’t do it.

From the Etta Mullins Opinion-

“It is not the proper role of a judge to negotiate the terms of a plea bargain or personally supervise enforcement of collections. See Ex parte Williams, 704 S.W.2d 773, 777, n.6 (Tex. Crim. App. 1991) (holding a trial judge should not participate in plea discussions or negotiations); see also Ex parte Shuflin, 528 S.W.2d 610, 616-17 (Tex. Crim. App. 1975) (finding standards adopted by the American Bar Association (not adopted by this State) that a “trial judge should not participate in plea discussions” were adopted, in part, for the purpose of avoiding a violation of the Texas Code of Judicial Conduct to “avoid impropriety and the appearance of impropriety” in all activities, and to “neither initiate nor consider ex parte or private communications concerning a pending or impending proceeding.”).

Accordingly, we find from a preponderance of the evidence that the respondent’s practice of requiring certain defendants to make an upfront payment of fines and court costs before accepting a plea and entering judgment violated Canons 2A and 3B(2), and was inconsistent with the proper performance of her judicial duties in violation of Article V, section 1-a(6)A of the Texas Constitution.”

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There was an arrest of a North Forney student for exhibition of a firearm today. It’s not a law you see often so let’s talk about it here, and discuss the juvenile process as  well.

First, what is the law on guns in schools?

To the Education Code we go-

TEX ED. CODE ANN. § 37.125

(a) A person commits an offense if, in a manner intended to cause alarm or personal injury to another person or to damage school property, the person intentionally exhibits, uses, or threatens to exhibit or use a firearm:

(1) in or on any property, including a parking lot, parking garage, or other parking area, that is owned by a private or public school; or

(2) on a school bus being used to transport children to or from school-sponsored activities of a private or public school.

(b) An offense under this section is a third degree felony.

The first thing to notice is that you don’t actually have to have a gun to get arrested. The law covers threats to use a gun at a school. That’s why I bolded that part. It’s also covers exhibiting, or threatening to exhibit a gun. Exhibit is a lawyer word for “show people”. So even threatening to waive a gun at a school is a crime. In this case it appears the student threatened to “shoot up a school” which is enough to trigger the working end of this statute. These offenses are all third degree felonies (2-10 TDC).

In the North Forney case the suspect in 15. So he’s going to juvie court. That process begins in Hunt County. Kaufman County does not have a juvenile detention facility so we ship our young defendants to Greenville. If the police want to talk to this suspect, or conduct an interrogation the Miranda process is different. A magistrate must read the warnings to the juvenile outside of the presence of law enforcement. Only then can statements made by a juvenile be used against him. That’s probably happening now.

After that the defendant must have a detention hearing within 3 days. At that hearing a judge will decide if the defendant will be released or not. I’m guessing not in this case. Some of the factors the court will consider are the juvenile’s criminal history, the supervision available at home, the threat to the public etc. Even on minor cases Kaufman County juveniles are often held until a psych evaluation is done. You can expect that in this case as well. Many school shooters around the country were on psychotropic medication.

There is some chance the DA could try and certify this suspect as an adult. To that end a court would look at what options there are to rehabilitate this defendant within the juvenile justice system. Barring a history of prior offenses, that may be difficult.

There are a lot of scared parents in Forney right now. Part of our 2nd Amendment culture is extremely easy access to firearms. I don’t see that changing any time soon. And it’s one reason the law regulates just threatening to use a gun. It implicitly recognizes that the “getting a gun” part is pretty trivial in Texas. So we treat threats with the exact same level of offense as bringing a gun to school.

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Calculating back time is an issue that slows down many a plea bargain. It’s not as simple as just adding up the days you were in jail. There are issues of when the warrant was issued, figuring out all the different jails you may have been in, getting those agencies to respond, and finally giving any “good time” credit the local sheriff may afford. In Kaufman County the District Attorney’s office will calculate the back for us, which is nice. In Dallas you can allegedly use their DHARMA initiative DOS computer (JI 55) to do this, but I avoid those like the plague (or like the MRSA infection that lives on those keyboards).

So if you are sitting in the county jail and looking at a plea bargain for pen time or county time how can you figure out your back time? Not by using this blog post, since I don’t know a single county jail with internet access, but I digress.

First, it depends on what kind of case you are pleading guilty to. Misdemeanor sentences are eligible for good time credit provided by the Sheriff towards any sentence. For example, in Rockwall you get 2 for 1 credit on misdemeanors. So if you get a 30 days sentence for your DWI you are out in 15. Kaufman County is day-for-day, which is nuts and serves no real purpose beyond keeping poor people in jail longer and costing local taxpayers to lock up DWI and POM offenders.

Good time/back time credit also depends on when the warrant was issued, so if you are arrested in Lubbock for DWI after leaving the Blue Light, and you get an motion to revoke (MTR) out of Kaufman County because you are already on DWI probation, then your back time for the Kaufman DWI MTR doesn’t begin until that warrant hits. Which, on a side note, Kaufman County does more “No Bond” misdemeanor MTR warrants than any other county I practice in. What’s up with that?

For felony cases you don’t get any local Sheriff bonus credit. No 2 for 1 or 3 for 1 credit to be had on prison sentences. When you are filling out a felony judgment for your sentence you have to list all the actual dates you were in jail, not just how many days total.

Once you do that TDCJ will apply their own formula for calculating back time depending on what type of charge you have, which is 2 0 days for every 30 days you serve (or 50 days per month). BUT, and this is a big BUT this doesn’t help you get credit towards parole eligibility on 3g cases, you are still serving 1/2 that sentence before you are even eligible. And being eligible for parole doesn’t mean you’ll get it. If the word “sexual” or “child” appear in your offense, you should consider that 1/2 sentence parole eligibility more of an idea than the date you get freed from prison.

So what to do with this information? First, parole is an issue most trial lawyers hate to think about. It only gets more complicated each year, and it’s something I don’t handle on a regular basis. Beyond 3g and Drug Free Zones I don’t keep up with many of the particulars on what the hot new topics in parole are. That being said, your lawyer should have a basic understanding of what kind of offense you are looking at, and how many days credit you can expect from sitting in county. Most of us should be able to figure that out.


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As any believer in sound money will tell you, inflation eats away at the purchasing power of your dollar. But without indexing for inflation, a thief who steals $49 worth of good 15 years ago, got a lot better deal than one who stole something 15 months ago.

In acknowledgement of this economic fact the legislature recently lowered the theft penalty ranges, by increasing how much shit you can steal before it becomes a felony, or class B misdemeanor.

The new amounts, for theft offenses committed after 9/1/2015, are as follows-

$99.99 or less – Class C Misdemeanor (like a ticket)
$100.00 to $749.99 – Class B (like a DWI or small pot case)
$750.00 to $2,499.99 – Class A (like family violence, or over 3 ounces of chronic)
$2,500.00 to $29,999.99
– State Jail Felony (like possessing 1/2 a gram of cocaine)
$30,000.00 – $149,999.99 – Third Degree Felony (like failure to register, or your 5th DWI)
$150,000.00 to $299,999.99 – Second Degree Felony (like an assault in which you break someone’s arm)
$300,000.00 and higher – First degree Felony (like murder, or over 4 grams of meth).

Why the analogies? First, theft is a real crime with a real victim. Second, the general public sees the law as good measure of morality. That is, felonies are really bad, and you are bad if you did one.

Let’s compare some offenses, DWI is the most politicized misdemeanor we have right now. It gets the most attention, and the most jury trial in Texas. It’s the same degree of offense as sitting on your front porch with a half smoked joint in your hand,  or stealing $700 worth of baby formula and Tide from Wal Mart. One thing about drug cases in Texas is that they get lumped in the same offense categories as offenses that actually matter.

State jail felonies are even more absurd. Having .001 grams of meth is prosecuted at the same level as stealing $20,000. Hmm…. does that strike anyone else as insane? These ranges of punishment are a guide, a signal to those in law enforcement and DA’s offices as to what the legislature thinks they should spend time on. And one reason state jail dope arrests are so popular among cops, is that it looks they solved a real crime when they bust a guy with a crack rock. It’s at least as bad as stealing $20k right?

One thing about theft cases is that plea negotiations are often the most financially driven. That is, the odds you will end up on probation are directly related to your ability to pay the victim back. You can’t pay anyone back if you are in prison. So if you are caught stealing a felonious amount, be prepared to bring cash to the plea bargain table. It’s one of the few crimes you can literally buy a better deal. Huge fines generally don’t interest prosecutors as much as restitution, so this won’t really work in other cases. That’s actually a good thing, fines go the government, whereas restitution goes to a real person.

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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.