Dallas Criminal Defense Lawyer Blog

This is a tough economy and many clients need until the last minute to come up with legal fees. No one plans on needing a criminal defense lawyer and even career criminals don't keep a defense lawyer fund handy. Ergo, it is not uncommon for a client to retain my services the morning of their court appearance.

In Kaufman, I have often met clients the morning of an announcement at my office, signed them up as a client, and then passed their case and requested discovery. This scenario is convenient for the client since they don't have to schedule an extra trip to my office and it gives them extra time to save money.

I have discovered one flaw in this last minute approach- it leaves little time for conflict checks. That led to my professional responsibility emergency this morning.

First, some background. I had two potential clients who were going to retain my services this morning for a court appearance at 9AM. By retain, I mean come in and make their first payment and sign a contract so I could start their case.

I met Client A yesterday for a brief consultation, and another I discussed the case with Client B via phone last week. They both dutifully appeared this morning in my office about 15 minutes apart and became (briefly) clients of Guest Law Firm PC.

I told each to meet me in the courtroom. I arrived in court and was reading the State's file on Client A when I realized I had just signed up two co defendants. Not only that, but the classic MPRE red flag two-people-in-the-same-car possession co defendants.

What's the rule on conflict in Texas?

Rule 1.06 Conflict of Interest: General Rule

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or

I quickly explained the situation to my soon to be ex clients and told them I would refund any payment and forever keep our conversations private. If they wanted a referral I would be glad to assist, but I could not take either case. 1.06 does allow representation of conflicted parties if the parties are made aware and consent. I didn't go that route, but here is the rule.

(c) A lawyer may represent a client in the circumstances described in (b) if:

(1) the lawyer reasonably believes the representation of each client will not be materially affected; and

(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.

(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Dropping two cases in one docket was bound to generate some debate among the lawyers present. One attorney advised I could keep one client and add a disclaimer to the contract. I dissented. I felt keeping either case was improper, even with consent of the parties.

I believe that having discussed the case with both parties I would have an unfair advantage should this case go to trial and/or should one party implicate the other. I believe this met the definition of "materially affected" in (2). In a co defendant possession case the classic defense is- "The drugs belong to X, not me." There is simply no way to disclaim/notify your way out of that scenario. It's a conflict, withdraw and move on.

A prosecutor in the courtroom agreed with my decision and stated that "You can always get two more clients, but if you lose your ticket (law license) you won't get anymore clients." That's a great line, I'm going to borrow that.

I have no doubt that some defense lawyers would stay on as counsel in a similar situation. Why? Ignorance of the ethical rules, knowledge that the odds of enforcement are low, and the economic reality that losing two fees at once really sucks in this economy.

I had a DWI jury trial for most of last week. I don't blog about trials or cases in detail, and I'm not going to start here. But I would like to talk about the experience of trial stress and what it's like to represent a defendant in front of a jury of her peers.

I usually start feeling trial anxiety the weekend before. That is when my thought process becomes dominated by visions of voir dire and opening statements.

If my mind isn't occupied with other matters I'm making arguments in my mind to imaginary jurors. It's not just a mental dialogue. I often visualize the scene, projecting myself into the trial.

I can see the jury, the prosecutor, and the courtroom. There can be some spill over into real life. For example, I'll be driving and start gesturing with my hands to emphasis a point in front of the jury in mind. My wife is getting used to this but still asks me what I am doing some time. I'm going through the motions, literally.

Trial Sleep
Sleep patterns are also affected by trial stress. I expect to wake up at least an hour earlier than usual during a jury trial. My usual sleep pattern is waking up between 4-6, going back to bed until 7 then starting my day. On trial days the first time I wake up is the last time. Whether it's 4 or 6 am I can't go back to sleep.

I'm ready to get to the office and tackle that days trial challenge. Not that I haven't already prepped the case. I work a case up well before trial. Usually by the pre trial hearing I've spotted the legal factual issues and decided what my angle is. But that's not always enough. Why?

Prepping for trial vs responding to trial
By the time trial has come around I'm ready for what I expect to be the important legal and factual issues. I've got my lists of questions and objections etc. Prepping for trial is essential, but it's rarely enough to get you through trial without some ad hoc legal work.

Criminal jury trials are never completely predictable and unexpected issues are to be expected. Stories change on the stand, the state has their own objections, the judge may ask you to research an issue before he rules etc. It's a rare jury trial that does not include a few moments of research panic.

S L O W D O W N
The trial adrenaline/stress have led to my strict no coffee/soda on trial day policy. Stimulants are not needed when you feel like a hummingbird on meth. Relax, take deep breaths, and exercise whenever possible.

I'm not embarrassed to admit that sometimes I exhibit the tell tale signs of jury trial adrenaline- shaking hands, nervous pen clicking, rocking back and forth in my chair etc. By far my worst bad trial habit is talking too fast.

These get better with each trial, but have not completely disappeared. The first day of trial is usually the worst, by day 3 of trial most of the adrenaline is gone. You can't exercise enough during trial. My preference is long walks to empty the mind.

Why so serious?
What is the source of trial anxiety? The defense lawyer/freedom fighter/Constitution protecting patriot in me interprets trial stress as a sign that I fully appreciate the awesome responsibility of defending the liberty of the accused. If you are nonchalant about your client who is facing incarceration, you shouldn't try criminal cases.

Further, our pro conviction appellate courts have created a situation where you must make a perfect objection every time in trial. If not, if you cite the wrong subsection of a statute or can't instantly think of the right case to cite, you have just waived your client's rights forever. Fun.

Every time a bell rings....
A great deal of pre trial anxiety is the theater/public speaking aspect. I was a thespian in high school and vividly remember the adrenaline inherent with live performance. My awesome skills as a player were rewarded with the lead in It's A Wonderful Life. I easily speak more lines in a criminal trial than George Bailey ever said on stage. Back then if I was off or forgot Zuzu's name no one went to jail. Trial is a high wire act, a solo performance in front of the public with your client's freedom on the line.

I enjoy trials after they are over. I learn something new every time- about myself, the prosecutor, jurors, the judge. Trial is often the best CLE, with unique lessons and costs. Emotionally draining, mentally exhausting work these jury trials are. And that's how it should be-

You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.

—Clarence Darrow, Closing argument in "Communist Trial

Well my trial ended so now I've got some time to blog. Here is roundup of sorts I was working on last week.

Want to be on Penn and Teller Bullshit?
I got a call from a producer with Penn and Teller looking for an interview on sexting. I wrote a general post on the laws in Texas but BS is looking for an attorney or defendant who have been involved in a sexting case. Particulary for defendants who have had their lives ruined by overzealous puritanical prosecutors. BS will be in Dallas in February to film. Email me if you are interested.

Austin Police Chief Calls
Got a call from Austin Police Chief Acevedo today. Art wanted to know if I wrote some article about him on the Ellis County Observer. I informed Art that I did not in fact pen this article, but I did write this piece on his warrantless electricity snooping program.

Netroots Nation
Finally, I'm working on a panel for Netroots Nation. The topic? Guess. I've got a speaker from LEAP and NORML lined up, should be fun. If you want to speak to a room full of uber liberal activists about the end of the drug war let me know. Did I mention it's in Vegas?

What is the National Criminal Justice Act? It's a commission proposed by Jim Webb (D) to evaluate the shortcoming in our criminal justice system. From Senator Webb.

The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.

Why We Urgently Need this Legislation:

With 5% of the world's population, our country now houses 25% of the world's reported prisoners.
Incarcerated drug offenders have soared 1200% since 1980.
Four times as many mentally ill people are in prisons than in mental health hospitals.
Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.
Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives.

We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.

Being a concerned citizen I emailed KBH and asked her to support this measure. As a former prosecutor I have seen the destruction caused by overzealous law enforcement. Arrest, prosecution, probation, and a criminal conviction are especially devastating on the thousands of young adults we prosecute annually.

It's about time we evaluated the investment of our tax dollars and the forfeiture of our liberty. I'm pretty sure we can find a better way forward than the status quo. A blue ribbon panel is a great way to start the conversation.

One thing I can say about KBH is that she responds fairly quickly to my emails. I really appreciate a prompt and courteous Senator. My only criticism is that the response says nothing about her position, but she seems eager to listen to my views on criminal justice reform. I'll be sure and forward those ideas to her post haste.

From KBH-

Dear Friend:

Thank you for contacting me regarding the National Criminal Justice Act of 2009. I welcome your thoughts and comments.

On March 26, 2009, Senator Jim Webb (D-VA) introduced S. 714, the National Criminal Justice Act of 2009. This act would establish the National Criminal Justice Commission, which would undertake a comprehensive review of the criminal justice system. The Commission would focus on incarceration policies, prison violence, and prison administration. After examining the current system, the Commission would be required to submit a public report to Congress and the President.

S. 714 has been referred to the Senate Committee on the Judiciary, on which I do not serve. Should this legislation come before the full Senate, you may be certain I will keep your views in mind.

I appreciate hearing from you, and I hope that you will not hesitate to keep in touch on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

Senator Cornyn hasn't gotten back to me yet. I'll post his response when available.

Recently, Shelby County District Attorney Linda K. Russell, found herself on the working end of a civil rights lawsuit for allegedly supervising a highway robbery (asset forfeiture) scheme in which casino bound minorities where pulled over for traffic violations and then threatened with prosecution if they didn't sign over whatever cash they had to the State.

Linda wanted to use tax dollars (and forfeiture cash) to defend her case. Fortunately, the Attorney General put Linda in the same position as the victim of asset forfeiture- Linda will have to pay for her own defense sans government funds.

What happened in Shelby county is indicative of the problems with Texas AF laws. When you combine government greed, racism, and a lack of protection/due process for defendants you get malfeasance and corruption every time.

From DMN-

James Morrow was driving to Houston to visit his cousin when he was pulled over in the East Texas town of Tenaha for "driving too close to the white line."

The officer, Barry Washington, searched the vehicle and asked Morrow if he had any money, according to court records. Morrow, who is black, had $3,900. He said the officer took the cash and drove him to the Shelby County Jail.

That's where authorities threatened to prosecute him for money laundering unless he agreed to forfeit the money, Morrow said. He was never charged with a crime in the 2007 incident, and when he pursued legal action, he got the money back.

Driving too close to the white line isn't a crime in Texas. Still, James was detained and robbed by local police for alleged "money loaundering". Nice.

It gets worse.

Tenaha is a town of 1,112 along a U.S. highway that links Houston with several gambling destinations in Louisiana. Several motorists had large amounts of cash because they were en route to or returning from Shreveport casinos, Guillory said.

Other plaintiffs include an elderly black woman from Ohio who said that after being threatened with money laundering charges, she signed a document authorizing the seizure of $4,000; and an interracial couple from Houston who alleged that authorities said they would place their two children in foster care if they didn't hand over $6,000

What's the law on asset forfeiture in Texas?
Texas government theft/asset forfeiture laws are found in Chapter 59 of the code of criminal procedure. Basically the state can seize "contraband" or property used in the commission of, or property that is the profits from a crime.

Wouldn't that require an actual conviction for a criminal offense? Not so fast. No conviction is required to steal your property. In fact, the State doesn't even have to actually charge you with a crime to file an AF case.

Worse, even if you are later acquitted (found not guilty), the State can still try and steal your property. Forfeiture hearings are civil, and the State need only show by a preponderance of the evidence that your property is contraband.

Most asset forfeiture cases are unopposed. AF victims are mostly poor and can not afford an attorney to fight the seizure. These defendants find themselves alone against the awesome power of the State's forfeiture machine. In civil cases when you don't show up the Plaintiff gets a summary or default judgment. In my experience many, if not most, forfeiture cases end this way.

A portion of the money, cars, and property seized become part of a DA slush fund for Xmas parties etc.

This monetary incentive, combined with the lack of court appointed counsel for the victims of AF, create the perfect environment for malfeasance.

The Sharon Keller findings of fact were issued today. Basically, Judge Keller failed to act as an "exemplary" public servant, failed to foster the open communication we should expect from judges, and even failed to learn anything for her mistakes; but ultimately the blame lies with the defense. Nice.

Judge Keller's conduct, however, was not exemplary of a public servant. She should have been more open and helpful about the way in which the TDS could present the lethal injection claim to the TCCA. She should have directed the TDS's communication to Judge Johnson. Although she says that if she could do it all over again she would not change any of her actions, this cannot be true. Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice. Further, her judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable. In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions.

Judge Keller's silence on several occasions conflicts with the ideal that courts
should foster open communication among court staff and litigants. But Judge
Keller's omission did not cause the TDS to be late in its filin,& to forget the other
available avenues, or to fail to have any of its experienced lawyers contact the TCCA.
She did not violate any written or unwritten rules or laws. Of course, that does not
absolve her of the responsibility to ensure that the courts remain fair and just. Her
conduct, however, does not warrant removal from office, or even further reprimand
beyond the public humiliation she has surely suffered.

In the end, perhaps this entire ordeal can have positive consequences for the
future. The TCCA has reduced its oral tradition for its execution day procedure to
written form, which will provide clarity and certainty moving forward. Appellate
counsel. including death penalty lawyers, certainly now know of all of the available
avenues to present a claim, even after the clerk's office has closed. Finally, we
should all be reminded of the responsibilities a public servant has to ensure and
promote fairness in the criminal justice system.

I take issue with the last sentence. How can we be reminded of the responsibilities of a public servant when we absolve a public servant of her blatant unfairness and bias?

This ruling is mind numbingly frustrating and reminds me of the hyper technical arguments the State often uses to challenge defense arguments on appeal. The rule in Texas seems to be that the police, prosecutor, and judge can make mistakes but the defense lawyers must constantly pursue perfection less our objections be waived. In this case the defense lawyer had another possible way to file his case and since he didn't do that Judge Keller's outrageous conduct is given tacit approval and immediately forgiven. This was an opportunity to stand up to a biased judge, instead we pile on defense counsel.

The Kaufman County Bar Association is conducting our soon to be annual judicial evaluations. If you are a member of the Kaufman Bar, or a lawyer who practices in Kaufman county and interested in becoming a member shoot me an email and I'll send you the forms.

These forms are, of course, completely confidential. We hope to have the results in the next few weeks.

Just got this in last week. It includes the testing procedures for controlled substances. In your typical dope case the DPS lab sends a short one page summary of the results of their testing. ADA's never think to question the veracity of these results. The assumption is that the lab did everything right, and the dope is dope. If you want to even try to second guess DPS lab work here is the place to start.

Texas DPS Controlled Substance Testing Manual

At any given time a few of my clients are in jail. Every defendant experiences the humilation of being booked in and bonded out, but a few are trapped in the county jail for extended periods of time. One things counties hate spending money on is inmate health care. Providng free health care for "criminals" is not a winning political theme.

I get a few questions from inmates and their families on what to do if they don't receive proper medical attention. I advise them to ask for a nurse as frequently as possible, and in writing, until something is done. Each county jail has different policies for dropping off prescriptions etc. But the jail is ultimately responsible for providing a minimum level of treatment for their inmates.

What happens when a county inmate is denied medical care, and suffers irreperable harm as a result? Recently Dallas county's notoriously mismanaged and dangerous jail met the working end of a 1983 civil suit. The defendant won at trial, and the county appealed. Dallas would rather pay lawyers than pay an inmate they almost killed.

Here is the lowdown on Shepherd vs. Dallas County; a recent decision from the 5th Circuit (circuit as in Federal, not State) court of Appeals.

Facts-
Stanley Shepherd was a "pre trial detainee". That's a nice way of saying he was being incarcerated even without a finding of guilt. Stanley had a history of hypertension and was being treated with Clonidine. Dallas county jailers were aware of this condition, but refused to provide him with the required daily prescription. Stanley suffered a stroke, and is now confined to a wheelchair because Dallas was too cheap and/or incompetent to treat Mr. Shepherd. From the opinon-

For the next seven weeks, Shepherd received no medical treatment. His medication was not dispensed as prescribed, and no medical provider checked his blood pressure. The record shows that he and his wife, who was aware of the situation, complained to jail staff and medical personnel about the lack of treatment. His wife, in particular, repeatedly expressed the concern that Shepherd would have a stroke if he did not receive his medication regularly.

Stanley filed a federal 1983 suit challenging the conditions at the jail.

What's a 1983 lawsuit?
1983 lawsuits are federal suits based upon constitutional violations. For county inmates there are two main causes of action. From the opinion-

Constitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a “condition of confinement” or as an “episodic act or omission.” Hare v. City of Corinth, Miss., 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc). If the plaintiff has properly stated a claim as an attack on conditions of confinement, he is relieved from the burden of demonstrating a municipal entity’s or individual jail official’s actual intent to punish because, as discussed below, intent may be inferred from the decision to expose a detainee to an unconstitutional condition.

In this case, Shepherd showed that the chronically mismanaged and understaffed jail created a condition where inmates were denied basic medical care. This wasn't hard. Dallas has historically had one of the worst run jails in the country.

1983 lawsuits can be an effective way to pierce the veil of sovereign immunity state and local governments so often grant themselves. But for the prospect of writing more checks, you can bet local pols would remain deaf to the concerns of pre trial detainees and their appalling treatment.

Auto accident reconstruction is an issue that comes up in intox assault/manslaughter cases. I know enough about accident reconstruction to know that I need an expert's assistance. Being in the DFW area I don't see a lot of boating while intoxicated (BWI) cases, much less a boating accident reconstruction scenario. So let's learn about this science together shall we?

Recently I had the chance to interview Phil Odom of H20 invesgitations. Phil spent years in DWI/BWI enforcement and is an expert in accident reconstruction. How exactly does one recreate an accident on the high seas? Let's ask Phil.

Resume/Background
I started in Law Enforcement in 1984 and I took most of the alcohol/drug related courses offered through the department. I completed the Drug Recognition Expert training (DRE) and later became a DRE Instructor. I was a DUI Enforcement Unit for a year and a half and received awards from MAAD. I was assigned to numerous “Attack Drunk Driver” Task Force operations on both land and water. I completed all of the training to be qualified as a Major Accident Investigation Team (MAIT) member. I was selected for the MAIT Team in the contract city I worked in and the department’s Regional MAIT Team. In 1996 I was promoted and transferred to the Colorado River Station. There was a lack of organization in boating collision investigation that was present in a MAINT investigation. I developed and supervised the Boating Accident Investigation Team (BAIT) for seven years, which initially got a lot of grins. I completed Boating Accident Reconstruction courses from the State of California, Underwriters Laboratories and The National Association of State Boating Law Administrators. I began teaching boating accident reconstruction for the California Department of Boating and Waterways (DBW). I took part in committees to rewrite DBW’s Accident Investigation Manual and Boating Under the Influence Manual. I was on the committee, which developed the curriculum for DBW’s Advanced Boating Reconstruction Investigation Course. I have been the operator of the striking vessel in over sixty staged boating collisions from speeds of 5 MPH to 45 MPH, which to my knowledge there are only three other people that have done this. My CV is contained on my website.

I've never seen a boating accident reconstruction report. Walk me through the process. How do you do this?

Boating accident reconstruction in the private sector starts with a contact from an attorney. I am sent all the reports, interviews, interrogatories, depositions photographs and any other information for review. In some cases, I can reconstruct the collision from this information alone. In more complex cases, the reconstruction starts with the evidence, which is the vessels involved in the collision, especially if there is question to the collision dynamics and fault. I will go to the location where the vessels are stored and inspect them. Damage analysis is crucial in any vessel accident reconstruction. Occupant kinetics and injuries are also a very important part of the reconstruction. Entry angles, damage and exit angles lead to course of the vessels and speed of the vessels. Most recreational vessels are constructed of fiberglass (there are no industry standards), which is resilient and can be deceptive when analyzing it. Scene examination is also important in considering environmental factors, vision obscurants, along with time-distance factors. I find initial interviews lacking in moist cases because lack of knowledge on the interviewers part and most parties are reinterviewed.

What are some of the difference between your auto accident
 reconstruction and car accident reconstruction?

Boating collisions are in far contrast to a vehicle collision. After a boating collision, the vessels do not stay at rest unless a vessel has struck the shore. Physical evidence can disappear at a very rapid rate along with witnesses; this is due in part to the length of response times of law enforcement. Another factor is, unlike collisions that occur on land, there is a third dimension added to a vessel vs. vessel collision, which is below the waters surface, vessels depress below the surface of the water when struck by another vessel, this creates a ramp for the striking vessel. A striking vessel can completely go over from stern (back) to bow (front) at speeds lower than 20 MPH. In a rear end vehicle collision the energy is absorbed by movement, front and rear end damage to the vehicles Most of the mathematical formulas used in auto collisions to determine speed can’t be applied in a boating collision. Crush calculations are impossible to determine the speed of a vessel using any type of mathematical formula. In contrast to automobile collisions, federal statues require actions on both operators of a vessel to take action to avoid a collision.

What should defense counsel look for in BWI cases?

In defense of a BUI case, there are many similar aspects as a DUI (vehicle) case. The first to look at is the probable cause for the stop, which can be based on an opinion, such as the age of a child not wearing a life vest, regulatory ordnance or a violation of a state and/or a federal statute. The US Coast Guard can board any vessel without probable cause, for safety inspection purposes. The main focus in a defense would be the field sobriety tests. In any field sobriety test conducted on the water, the operator performs the FST’s on a moving platform, the patrol vessel. If field sobriety tests are conducted on the water, it leaves a large area to question as to the validity of the test and the impairment of an operator. Just one example is a “modified” finger to nose test, which is commonly used, on the water. Questions would be what were the environmental conditions at the time? The operator is expected to touch the tip of his finger, to the tip of his nose and if it is missed by a quarter of an inch, it is considered by law enforcement as missed. This test conducted on a moving vessel could be impossible to “pass” if wind, any type of wave or other environmental conditions is present. If the FST’s are conducted on land other factors not associated with motor vehicles is equal librium issues from being on the water which can influence the FST’s. If the tests are conducted on land was it a detention or an arrest? Another area that is overlooked is the preliminary alcohol screen test (PAS). There are manufactures requirements that are rarely practiced in the marine environment, including calibration logs. There was a fatal collision in northern California and the instrument used by law enforcement was not calibrated for over a year. In BUI cases, from police reports I can review the case and prepare questions for council to ask in the proceedings.

What is the status of field sobriety testing in boating cases?

At the present time there are no field sobriety test validated for use on the water. In 2007 The National Association of State Boating Law Administrators (NASBLA) began year one of a three-year SFST Validation Study. The first year gathered BUI arrest reports from across the country and analyzed the data to develop a total of 13 possible candidates for standardized field sobriety testing. Testing on those preliminary tests has shown that six have higher promise than the others. Testing standards have been developed, and laboratory testing has begun and should be completed by the end of this year. The Executive Summary can be found on NASBLA’s website.

Anything else?

In representing someone of any alcohol related offence that occurred on the water or a vessel collision and the use of an expert is needed, look closely at the experts experience and qualifications in the exact field.

Personal friend and criminal appeals guru has reentered the world of private defense practice. His website could use some SEO magic, so here it goes.

www.souzalawdallas.com

Chris designed his own website, I outsourced mine to Justia. Check out his page of significant decisions. It's pretty significant. Chris is fluent in Spanish, a former ADA, a former public defender, and a has earned a solid Avvo review from yours truly.

Sexting is the latest moral panic du jour. In Texas, we have decided that the best way to produce healthy young adults is for the State to criminalize normal consensual teen behavior. Lest our young adults grow up without a healthy fear for the arbitrary and limitless power of law enforcement. Like Lenny and his rabbits sometimes the State can care too much.

How much does Texas love our young adults? Let us count the ways teenagers can be destroyed by the State for sexting.

While you won't find "sexting" in the penal code, the act of sending nude pics of teens violates a few statutes. The first is possession of child pornography.

§ 43.26. POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY. (a) A person commits an offense if: (1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and

First, what is the affirmative defense under 43.25(f)? Basically, cops (acting in an official capacity), spouses, and those within 2 years of age of the child have a defense at trial. Like all affirmative defenses the defendant can still be arrested and prosecuted for the offense.

My question is why just a two year window? Compare this to the affirmative defense to having sex with someone under 17 which has a 3 year "Romeo and Juliet" affirmative defense. According to our laws, it's worse for a 18 year old to look at a naked 15 year old on his cell phone, than it is for that 18 year old to have sex with that 15 year old. A strange sense of morality this penal code has.

If the State decides not to go the child porn route they sexters could also be charged with obscenity.

§ 43.23. OBSCENITY. (a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device. (b) Except as provided by Subsection (h), an offense under Subsection (a) is a state jail felony. (c) A person commits an offense if, knowing its content and character, he: (1) promotes or possesses with intent to promote any obscene material or obscene device; or (2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity. (d) Except as provided by Subsection (h), an offense under Subsection (c) is a Class A misdemeanor.

Children are sexually confused and frustrated enough in Texas without having to worry about the State's Mutaween. Parents, not cops and prosecutors, should define what is acceptable for their children.