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Chief of the criminal defense division

Criminal Law

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


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

Juvenile Law

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

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Potential Rockwall DWI clients are usually surprised to learn that they havd the right to refuse to participate in their DWI investigation. All you are required to do is provide your license and insurance. If you’ve been drinking at the Harbor and get pulled over you’re going to jail anyway. It’s just going to happen. Not getting arrested isn’t the goal, the goal is to not give the State fake junk science evidence (field balancing tests) they will use to convict of DWI (and DWI is the most expensive misdemeanor conviction in Texas).

That’s right, in Texas you do not have to answer any questions, including the most common DWI questions such as

- where you are going
- where you are coming from
- how much you have to drink
- what prescriptions you take
- what time was your first/last drink
- did you eat anything
- do you know why you were stopped

Guess what? If you have consumed two beers and tell the police that, they won’t believe  you, because everyone says they had two beers, so telling the truth won’t even help. And if you’ve had multiple drinks over a long period of time, (which means much of the alcohol would be out of your system), they won’t believe your time period.

Second, you DO NOT HAVE TO PERFORM ANY DWI FIELD TESTS, INCLUDING THE PEN TEST. If an officer asks to “check your eyes to see if you are ok to drive”, politely decline. It’s a set up and the test results can not be challenged later because no one can see your eyes but the officer. We can challenge the administration of the test, but our pro conviction appellate courts have ruled that there is very little an officer has to do right when performing the pen test to testify as to the “results” in trial. Remember, you are going to jail anyway, so don’t give the State any junk science field test evidence to use against you. Be a total refusal.

I’m usually asked how an officer will react to a total refusal. Usually not very well, they will threaten you, get in your face, intimidate you, keep repeating the same questions over and over while standing inches from your face. We are taught to be deferential to the police, and if the police are mad, most people are afraid and will comply. It’s a game to get you to participate in their DWI investigation and most people crack. If you can just be polite, ask for a lawyer, and refuse to answer any questions. Bonus points if you also ask if you are free to go. That’s it, just say “I want to remain silent and talk to a lawyer, am I free to go?”. See how easy that is.

Rockwall Pro Tip- Watch for this trick question from Rockwall PD or DPS. “On a scale of 1-10 how intoxicated are you? with one being ok, and 10 being completely drunk”. No matter what you answer, you give the cop what they consider a confession. Because you are admitting to being intoxicated. Just say nothing, if you can’t, then say zero.

You should always refuse a breath or blood test as well. Rockwall PD will often get a blood warrant, and that’s ok. Let them get a warrant, just don’t consent. When you consent to a search you give up many options to challenge the search later. Plus, confirming whether or not DPS tested your blood correctly (DPS lab employees have been known to fake their work product) is expensive.

Actually, don’t consent to a search of anything ever (your car, pockets, purse etc). If the police search anyway, don’t stop them, just sit back and try to relax and I’ll litigate that issue on the back end.

Yes you will go to jail anyway, but you will be a “total refusal” case, which means you didn’t give the State any junk science SFST evidence to convict you. That’s the point. Prosecutors, judges, and too many jurors really believe that a roadside balancing test can detect intoxication perfectly. But there are many reasons someone can struggle with a roadside balancing test besides intoxication and officers rarely if ever screen for those reasons. For example, if you tell an officer you’ve had knee surgery recently, or that you have bad coordination they will usually say “just do your best”. That line appears nowhere in their training manual, but it’s fake science anyway so who cares if we make up new rules as we go along?

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Our firm handles expunctions for all kinds of cases, and we spend a lot of time clearing up misconceptions about what the law is on expunctions in Texas. The number 1 misconception is that deferred adjudication probation cases can be expunged. So many lawyers were misinforming their clients about deferred expunctions, that deferred probation cases in Kaufman County now have a separate plea form that informs all Defendants that DEFERRED PROBATION CASES CAN NOT BE EXPUNGED, ONLY NON-DISCLOSED (some call this “sealed”). Quick lesson, expunction destroys all records pertaining to an arrest, non disclosure keeps those records from the public (but the Government can still view them and they still exist).

But that’s not what we are going to discuss today. Today’s misconception is that all dismissed felony cases can be expunged. Not so fast. The law in Texas places restrictions on the expunction of dismissed cases and a recent Dallas Court of Appeals case breaks down the law so let’s use that as our example.

Today’s case of the day is Bothwell vs. State, an appeal out of the 86th District Court in Kaufman County. 

What happened?

In 2008, Bothwell was indicted for indecency with a child by sexual contact. The complaining witness (CW) was Bothwell’s daughter. The CW alleged that Bothwell kissed her and touched her breasts and vagina. The CW wrote out a statement detailing the abuse, but later recanted saying she made it all up to please her mother. The CW recanted and re-alleged the events multiple times. Eventually the prosecutor dismissed the indictment out of concern for the CW’s mental health.  Bothwell wanted the records expunged, because being accused of sexual indecency with a child will ruin your life, and he wanted a way to put this event behind him.  So Bothwell filed a petition for the expunction in the 86th District Court of Kaufman County, the judge denied the petition. Bothwell appealed.

What’s the law on expunction for dismissed felony cases in Texas?

Great question. From the opinion-

Section 55.01 of the code of criminal procedure provides in pertinent part that a person arrested for commission of a felony is entitled to have the records and files of the arrest expunged if the indictment or information has been dismissed or quashed, and the court finds that the indictment was dismissed or quashed . . . because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void.

Ok. So it’s not enough to have your felon case dismissed once it’s been indicted, you have to prove some other elements as well, such as mistake, false information, or lack or probable cause. This is why it’s very important to see what the prosecutor puts in their dismissal motion. In Kaufman County we have standard dismissal motions that include a list of reason for the dismissal (including a blank “Other” section). There are reasons on the form such as “in the interest of justice”, “Defendant was convicted in another case”, or “insufficient evidence”. It’s important to note that some of the reasons will not entitle you to an expunction. So even if you get the case dismissed, you still have to prove that there was no probable cause, or false information, in order to get an expunction.

In this case the prosecutor testified that she believed the allegations, even thought the witness confessed to lying, and the judge believed the prosecutor (that is, found the prosecutor to be credible) and didn’t believe the CW (Bothwell’s daughter). So th Dallas Court of Appeals ruled against Bothwell as well.

So remember, just getting a felony case dismissed does not entitle you to an expunction. You may have to prove to a judge that you qualify and have a contested hearing regarding the expunction.


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So you have a trial and you are found guilty and the judge sentences you to 45 years in jail. You file an appeal and win, and you get a new trail. However, you are found guilty again but this time the judge sentences you to 50 years in jail. Did the judge increase your sentence because you exercised your right to appeal? If so, that’s called judicial vindictiveness and it was the issue in a recent appeal out of Kaufman County.

Today’s case of the day is-

No. 05-13-00130-CR ROMAN JESSE MENDOZA, Appellant V. THE STATE OF TEXAS, Appellee

What happened?

Mendoza was convicted of murder in 2009 and the judge sentenced him to 45 years. The Dallas Court of Appeals reversed that conviction and Mendoza got a new trial. Mendoza was convicted again and this time the judge sentenced him to 50 years. So Mendoza filed an appeal judicial vindictiveness because the sentence was increased because he asserted his right to appeal. But… while on bond for the new trial Mendoza picked up a DWI arrest, which is important so remember that. Let’s look at the law first.

What is judicial vindictiveness?

From the opinion-

It is well-established that the “imposition of a penalty upon the defendant for having
successfully pursued a statutory right of appeal . . . [is] a violation of due process of law.” North Carolina v. Pearce, 395 U.S. 711, 724 (1969), overruled in part on other grounds in Alabama v. Smith, 490 U.S. 794 (1989)….

A trial court’s reasons for imposing a harsher sentence after a new trial must appear affirmatively in the record. Alabama v. Smith, 490 U.S. 794, 798 (1989). Otherwise, a presumption arises that the trial court imposed a greater sentence for a vindictive purpose. Id. at 798-99. The State may rebut this presumption with objective information justifying the increased sentence. Id. at 799. And the trial court may consider any information that reasonably bears on the defendant’s proper sentence. Wasman v. United States, 468 U.S. 559, 563 (1984).

What does that mean? 

Basically a judge can not increase your sentence merely because you asserted your right to appeal. That is, a Defendant can not be punished for appealing his conviction. So if a judge is going to issue a harsher sentence at a retrial, there must be some new evidence to justify a harsher sentence.

Oh, so the new DWI is going to count as new evidence to justify a harsher sentence?

Exactly. The Dallas Court of Appeals held that the evidence of the new DWI charge was enough to justify a harsher sentence and defeat the Defendant’s argument of a vindictive sentence.

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It’s strange to talk about speedy “trials” in probation revocation cases, because a probation revocation hearing is nothing like a criminal jury trial. For example, in probation cases your only audience is the judge, you have no right to a jury, and the burden of proof is much lower to revoke (preponderance) than convict (beyond a reasonable doubt). Still, a person facing a motion revoke probation has a right to a speedy trial, or hearing. A recent case from the Dallas Court of Appeals addressed this issue. Today’s case of the day is

No. 05-13-00371-CR GEORGE GUO, Appellant v. THE STATE OF TEXAS, Appellee

So what happened to Mr. Guo?

In 1991 George pled guilty to burglary and was sentenced to shock probation. What’s shock probation? That is where you are sentenced to prison (in this case George got 10 years in TDCJ) but the court allows you do probation after spending a few months in prison. That is, the “shock” of going to prison is going to make you a better probationer. Hence the title, shock probation.

So George gets out of prison on starts probation. In 1999 George is arrested again for a few felonies in Fort Bend County. Rule No 1. of probation is to not get arrested, so Dallas filed a motion to revoke Mr. Guo’s probation. A bench was is issued in 2001 to bring George back to Dallas. George pleads guilty in Fort Bend County and is sentenced to prison for 14 years. Mr. Guo is finally transferred to Dallas for the probation revocation in…. 2012! George’s lawyer files a motion to dismiss the probation revocation case because the delay has violated Mr. Guo’s right to a speedy revocation and the trial court denies the motion.

I know what you’re thinking. That if speed trial rights mean anything, it should mean the right to have a hearing within  a decade of a motion to revoke probation being filed. But this is Texas, and silly things like a constitutional right to speedy trial will not stand in the way of our conviction machine. Let’s look at the law.

What’s the law on speedy trials in probation revocation cases?

From the opinion-

In the context of a probation violation, a defendant’s right to a speedy trial attaches when the motion to revoke is filed. Martinez v. State, 531 S.W.2d 343, 345 (Tex. Crim. App. 1976). State courts analyze federal constitutional speedy trial claims under the guidelines outlined in Barker v. Wingo and we consider four factors: (1) the length of the delay, (2) the State’s reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant resulting from the delay. See Barker, 407 U.S. at 531; Cantu v. State, 253 S.W.3d 273, 280

(Tex. Crim. App. 2008). No single factor is necessary or sufficient to show a violation of the right to a speedy trial, although the length of the delay is a “triggering mechanism” for analysis of the other factors. See Barker, 407 U.S. at 530, 533. If the delay is “presumptively prejudicial,” the State then bears the burden of justifying the delay and the defendant has the burden of proving the assertion of the right and prejudice. Doggett v. United States, 505 U.S. 647, 657−58 (1992); Cantu, 253 S.W.3d at 280. The defendant’s burden of proof “varies inversely” with the State’s degree of culpability for the delay—the less culpability the State has in the trial delay, the more a defendant must show actual prejudice or proof of diligence in asserting his speedy trial right. Cantu, 253 S.W.3d at 280–81. In evaluating a speedy trial claim, we balance the State’s conduct against the defendant’s and consider the four factors together, along with any other relevant circumstances. Barker, 407 U.S. at 530, 533. While the State has the burden of justifying the delay, the defendant has the burden of proving the assertion of the right and prejudice.

How did the court apply the law to this case?

The first factor the court looked at was the length of the delay. It was a really long time between the motion to revoke being filed and Guo being brought to Dallas for a hearing. The court held that the delay was long enough and finds this issue favors Mr. Guo.

Second factor is what caused the delay. The State had no real answer for why the let Guo sit in jail so long. So the court found against the State on that issue. 2 for 2 for Guo so far.

The third factor is, when did the Defendant assert his right to a speedy trial. In this case that was in 2012, when Guo was actually back in Dallas. Guo had a lawyer on the probation revocation during this time, his lawyer made the decision not to file a speedy trial motion earlier because that lawyer thought the case was too old to prosecute. The appeals court found that Guo should have filed a speedy trial demand sooner and rules for the State on this factor.

Finally the last factor is prejudice, that is, how was Mr. Guo harmed by the delay in his speedy trial rights? I’ve always thought prejudice was a weird factor to add in the speedy trial analysis. It feels specifically help the State save their precious conviction. This is the factor courts use most often to excuse speedy trial violations. Think of another Constitutional Right that we will allow the State to violate routinely under a “no harm no foul” mentality. That’s what the prejudice factors does, it makes a defendant prove to the court’s satisfaction that it would be harder to try his case after a decade has passed, and if he doesn’t do that to the court’s satisfaction, then his constitutional protections are ignored.

In this case Guo asserted that it would be really hard to bring in witnesses from his old felony cases to testify since the allegations are so old. And that makes sense, but what the court of appeals found is that Guo should have produced more evidence of prejudice at the speedy trial hearing. That is, Guo needed to prove a negative. He had to show at the speedy trial hearing what he wouldn’t be able to show at the probation revocation hearing because of the delay. That is, put on proof that the witnesses couldn’t remember these events, or had moved or died etc. So the court rules that Guo didn’t do enough and finds for the State on this factor.

If you are keeping score that’s 2 for Guo and 2 for the State. So now the court has to “balance” these factors. Here is the entire balancing act.

From the opinion-

The delay here was presumptively prejudicial to trigger a speedy trial analysis. Weighing in favor of finding a violation of appellant’s speedy trial right are the facts that the delay was excessive and the State offered no good reason for the delay. Weighing against finding a violation of the right are the facts that appellant knew of the pending motion, was incarcerated on other felony charges during the entire time, failed to assert his right until he was returned to Dallas over thirteen years after the motion to revoke was filed, and failed to demonstrate prejudice. In light of this record, we conclude appellant’s right to a speedy probation revocation hearing was not violated.

That was quick. It took longer for the court to explain the law than it did to explain why the Defendant loses even though the State and Defense each had two factors in their favor.

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CLEAT, the largest police union in Texas, has developed a new app to help law enforcement officers across Texas. Now what should be a standard feature in a police app? The traffic code? Yelp listings for breakfast nearby? A list of the most wanted criminals? The local unofficial ticket quota? The best way to “lose” video evidence?

How about the ability to quickly lawyer up after you shoot someone one? Because that’s what CLEAT put in their app.


 The app uses GPS technology to connect an officer with an on-call attorney after a critical incident. It’s free, easy to use — and it’s the only mobile phone app designed exclusively for law enforcement officers.

“No other law enforcement association has anything like this,” said CLEAT President Todd Harrison.

“This immediately provides legal representation for officers who have had to use force during a critical incident.”

 You know who needs this “lawyer up” app? The Dallas Police Department. DPD recently created a 72 hour waiting period before questioning an officer after a shooting so that officers would not get caught lying as much. 

On one hand, I’m glad that CLEAT  knows to never speak to the police without talking to a lawyer first. If you ever think it will “look bad” if yo don’t speak to the police or give a statement, guess what? Cops don’t even speak to the police when they are suspects, so why should you?

As much as I am for lawyering up if you are a suspect maybe, just maybe, we are shooting too many people, and/or not holding officers accountable for the illegal use of deadly force? Can we create an app for that? The app could list ways to resolves a situation besides say shooting a mentally ill person, or a dog, or a suspect who is running away from you.


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A story in DMN highlights another problem with our State’s idiotic marijuana laws. By making a very safe product illegal, marijuana, we have led people to use more dangerous drugs, like K2 or synthetic weed.  The end result… from DMN- 29 people treated at Dallas hospitals for possible synthetic marijuana overdoses | Dallas Morning News.

Dr. Jim d’Etienne, who supervises the emergency department at Baylor, said most patients came to the hospital by ambulance with signs of severe intoxication and psychosis.

He said multiple patients came in with the same symptoms, including extremely agitated behavior. According to d’Etienne, some had to be sedated.

Most of those treated were later released, he said.

Dallas police only would say detectives in the narcotics division had interviewed two patients.

That’s great that we have narcotics officers at the hospital to supervise a problem law enforcement created. Narcotics officers arrest pot users, sellers, and growers. So now we have dangerous substitute goods that enter the market, like K2. Since K2 is much more dangerous than weed, the users end up in the hospital, and narcotics officers have to spend their time trying to stop this crisis that they created.

It’s like a negative feedback loop of government inanity. Stupid laws beget wasted law enforcement resources and worse public health outcomes. No one would smoke K2 if pot was legal. Our genius political rules have chosen to have these K2 overdoses by making possession of one joint punishable by up to 6 months in jail.

Of course all this is job security for law enforcement bureaucrats, now that we have a government created K2 crisis, we can justify hiring more cops, prosecutors, probation officers, and jailers to address that issue. It’s a win/win for the police state and big government. Which is another reason why you can not believe in limited government and cannabis prohibition, they are mutually exclusive positions. I’m looking at you Texas GOP.

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Remember last week’s post about a DWI case where the State violated a discovery order and hid evidence from the defense and violated a discovery order that required them to turn over evidence in a timely manner? If you don’t, here’s my post about it. Long story short, the Dallas Court of Appeals said it’s ok if the State ignores a court order when it comes to discovery and doesn’t turn over evidence to the defense on time.

Not to be outdone, our state’s highest criminal court, the Court of Criminal Appeals, ruled on the same issue recently in a different case, and guess what? They came to the same conclusion, if a prosecutor hides evidence or “forgets” to turn over evidence and violates a court’s discovery order, that’s fine.

The purpose of our criminal appellate system in Texas is to uphold a conviction at all costs. It’s the reason that our appellate courts bend over backward to say a defendant “waived” all objections on appeal, while at the same time our appellate court allow (if not outright encourage) the State to ignore discovery orders, because the system wants the conviction above all.  The asymmetry of accountability between the State and Defendant is mind boggling.

So what case are we talking about today?

That would be Tracy Francis vs. State, a case out of Houston.

So what happened?

Francis was charged with assault with a deadly weapon, a knife. Three months before trial, the court ordered the State to allow the defense to inspect any weapons that were going to be offered into evidence at trial. Guess what? After the trial started the defense lawyer notices a giant machete on the State’s table. A machete isn’t a knife, and despite the court order the State never informed the defense about the machete, or provided an opportunity to inspect it. So the defense objects to allowing the knife at trial because of the unfair surprise to his client and because it’s a clear violation of the court’s order.

What was the State’s excuse? That they forgot about the machete.
From the opinion-

[PROSECUTOR]: I brought the machete as evidence. And when I was
showing the defense counsel all of the evidence that I was intending to offer
in this trial, that’s when he mentioned that he hadn’t seen the machete. I did
receive the machete from Ms. Thomas when I went to interview her in
preparation for trial. That is the first time I knew about it.
THE COURT: When was that?
[PROSECUTOR]: That was in — I don’t remember.
THE WITNESS: Last month.
[PROSECUTOR]: Yeah. It was before the last trial setting, I believe.
So far in advance. It’s been in my possession since that time. I honestly didn’t
know that the defense didn’t know about the machete. I thought that it was in
the offense report, but it wasn’t.

This is important, because unlike defendants who can be charged with reckless or negligent conduct, or can be thrown in jail and charge with a new crime for “forgetting” about a court date; prosecutors are allowed to forget to follow court orders, because forgetting isn’t considered bad faith. And for a defendant to get anywhere with a complaint about a prosecutor on appeal, you usually have to prove bad faith, which you can’t, unless the prosecutor is willing to confess to misconduct in court, which never happens.

It’s like Batson challenges, for example when the State strikes all the black jurors from your jury panel, and then the prosecutor has to give a race neutral reason, so the prosecutor will say “That juror didn’t make eye contact with me”, or “That juror smiled at the defense lawyer’s joke in voir dire”. It’s might just be BS to cover up what just happened, which is the State struck all the black jurors. But BS can be good enough in Texas. You have to be the world’s dumbest prosecutor to be held accountable for violating discovery orders because you have to tell the judge that “yes I hid the evidence to prejudice the defense”, if you can think of any other answer, you can get away with it.

So let’s assume this prosecutor did forget about the evidence. I have no reason to believe otherwise and it’s possible. We have a drug war going on which means DA’s offices across the State are flooded with meaningless drug cases, so prosecutors have less time to work on real cases, like assaults with a knife.

But, on the other hand, what if a prosecutor keeps up with the cases out of the court of appeals, and knows that by just claiming to “forget” to comply with a court order means they can get away with it, because our appellate courts with never hold them accountable?  If they think it will help them win, and they can’t get caught, what’s stopping them from ignoring discovery orders?

I can tell you what isn’t stopping them, and that is the current case law on violating prosecutors violating discovery orders. Here’s the law (from the opinion)-

“[E]vidence willfully withheld from disclosure under a discovery order should be
excluded from evidence[.]” Because exclusion of evidence in this context is in the nature
of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should
exclude evidence on this basis has been made to hinge on “whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.]” Extreme negligence or even recklessness on the prosecutor’s part in failing to comply with a discovery order will not,standing alone, justify the sanction of excluding relevant evidence.

If you read the first sentence of the law on discovery violations you might actual think we are going to hold the State accountable, but by the last sentence you remember this is Texas. We have given license to prosecutors to be reckless and extremely negligent when it comes to turning over evidence and complying with court orders, which highlights our state’s, and the State’s, indifference to fair trials or preventing wrongful convictions.

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Lyft and Uber are disruptive technologies (apps that let you hail a ride/cab) that threaten the entrenched taxi cartels in many cities, including Dallas. Here is how the taxi game used to work, taxi companies lobbied local government and begged to be regulated and for “consumer protection” laws. But why would an industry want to be regulated? Simple. To decrease competition. It’s not uncommon for cities to limit the number of cabs, or pass laws that create such high barriers to entry that new cab companies can’t form. Taxi companies love these kinds of laws. Economists call this “rent seeking” behavior, where companies win profits through political lobbying instead of by providing a better product. It’s also the difference between free markets and corporatism.

Taxi companies have long lobbied (ie legally bribed) their local pols to decrease competition and nobody complained much until Uber and Lyft came along. In Dallas the city tried to diligently obey their taxi masters and sent the police to arrest Uber cab drivers (Dallas is a real life version of The Wire). You know you’ve hired the right lobbyists or given the right donations when you can get the police to arrest your business competition.

I thought this was a DWI article?

Dallas and the greater Metroplex are monuments to terrible design from a traffic safety standpoint. It’s impossible to walk to a shop, restaurant, or bar in the suburbs, and in most of Dallas as well. Politicians made it this way, and it’s one reason we have some many DWI arrests. Because our pols made it impossible to get to a bar without driving, which is why every bar in the suburbs has a huge parking lot.

What kind of idiot zones a city like this? Is there a Sprawl Design seminar somewhere? Since we can’t go back Sim City style and fix our awful zoning and transportation decisions we could at least embrace technologies that make it easier to get a cab in lieu of driving after drinking (which, if you are not intoxicated is still legal despite what DPS billboards say).

We should approach Uber and Lyft, as potentially life saving technologies and market solutions to our DWI problem. Instead of continuing to increase penalties for DWI and erode what little (if any) constitutional protections we have left, cities should instead work to make it easier for Uber and Lyft to set up in their community. If we can make it easier to not drive to where you are drinking, more people will choose to let a sober Uber or Lift driver take them to Chili’s or The Loon.





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One reason we needed the Michael Morton Act (which improved on our State’s horrible discovery rules in criminal cases) is that the State was hiding evidence which convicted innocent people. One problem with the Michael Morton Act, and the prior discovery rules is that there is no penalty if the State fails to turn over evidence, and then chooses to surprise the defense at trial with secret evidence. Let’s contrast this situation to the standard that we hold defendants, in which they are penalized at every stage of a proceeding for the slightest error. Defendant has work and misses a court date? Warrant! Defendant objects to the wrong subarticle of the Code of Criminal Procedure, that issue is waived on appeal! They created a new board certification for criminal appeals in Texas. But you don’t have to be an appellate genius to guess the outcome of any criminal appeal. 95% of the time whatever violations of the evidence rules, code of criminal procedure, or Constitution will be overlooked if the court of appeals can uphold a conviction. That’s the purpose of appellate courts in Texas, to uphold criminal convictions, and to reverse judgments for damages against Defendants in civil cases.

This leads me to our case of the day- Laura Sanders vs State of Texas

What happened?

It’s a DWI blood case, Defendant was convicted and sentenced to probation.

So why was it appealed? 

Get this. The trial was in April of 2012. In October of 2011 the Defense filed some discovery motions, which the court granted, that required the State to turn over evidence regarding the blood test within 10 days of the order, and a list of expert witnesses who would testify at least 20 days before trial.

So what does the state do, it files the Defendant’s medical records a month before trial with the clerk (just a few months too late). And then, during the trial, the State hands the Defense Lawyer  a notice of the expert witness that is about to testify. So much for 20 days notice.

Fun Medical Fact- You know that HIPAA law that makes it so difficult to get your records from your Doctor? It doesn’t apply to DWI prosecutions. The State and our appellate court laugh at your medical privacy. Fun Medical Fact 2- DPS keeps a database of all the prescriptions you take. They can search it anytime without a warrant.

Back to the story. The Defense objects because clearly the State violated the discovery order and the records are over 112 pages long and they have had no time to learn about the expert who is going testify.

So we have two clear violations of a court order. What punishment awaits the State?

Nothing. The judge rules that all the evidence is coming in anyway, and that the Defendant can have a week continuance if they want. The defense lawyer chooses to proceed because a week isn’t long enough for him to work up these records anyway and the Defendant is convicted. The Defendant appeals this discovery violation.

What’s the law on discovery violations at trial? Basically it encourages the State to cheat because the Defense can only ask for more time to prepare. From the opinion-

The proper procedure when alleging surprise due to violation of the trial court’s orders for discovery is to request a continuance. Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985); Tamez v. State, 205 S.W.3d 32, 40 (Tex. App.—Tyler 2006, no pet.). If a witness’s name is not furnished to a defendant before trial despite a court order, any error in allowing that witness to testify over a claim of lack of notice is waived by the failure to move for a continuance. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994); see Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (failure to seek continuance waives error urged on basis of surprise).

Which begs the question, why would the State ever comply with a discovery order? At worst, they get a break in the middle of the trial, at best they can spring secret evidence on the Defense at trial and hope for a conviction if the Defendant won’t ask for a continuance.

Why wouldn’t a lawyer always seek a continuance? One reason is that maybe the Defendant has already taken off so much work for the case that they can’t come back in a week. Wasting a Defendant’s time is one of the ways we get people to plea, but trials are a huge cost to a Defendant when you count how much work they miss. Also, one week isn’t enough time to interview everyone in 112 pages of medical records and hire an expert. You can’t do it.

Holding- The Conviction Is Saved! Prosecutors may continue to hide evidence and ignore court orders.




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Here’s a story from WFAA about problems with the DPD field sobriety testing program. Apparently too many officers were failing, and it’s taken on a racial angle of sorts.

Dallas police sobriety testing training practices called into question | wfaa.com Dallas – Fort Worth.

Here’s what you to know.

1. Standard Field Sobriety Tests are junk science and you don’t have to believe in them. These tests were invented by NHTSA in 70′s as a way to increase DWI convictions. They have never been peer reviewed or been subject to a study with a control group. Really, you have to have complete faith in the federal government to even start to believe that the only reason someone could have trouble balancing on the side of a road under the threat of arrest, is because they are drunk.

2. The training is really short and it only takes a 24 hour class to become “certified” in SFSTs. For comparison, it takes 600 hours of training to become a certified nail technician in Texas, but only 24 hours to become an SFST certified DWI arrest machine. This is pretty amazing considering that  after one 24 hour class, of which you spend maybe a few hours on the HGN, you will able to testify that you can diagnose one type of nystagmus to the exclusion of the other 40 or so, and jurors will believe you. Fun fact- I took the class and am certified in SFSTs.

3. The tests and the end of the SFST class are not hard. Really, they are a little harder than the “Which Walking Dead Character Are You” quiz on facebook, but after 24 hours of hearing about the tests and other NHTSA propaganda you should be able to regurgitate the nonsense back to the instructors fairly well.

4. Get this, we used to have standards for officers to call themselves SFST “certified”. They were pretty pathetic, basically take an 8 hour refresher course every two years. But guess what? So many officers were failing to keep with this requirement that the State scrapped it. That’s right, they eliminated all requirements for SFST certification from the Texas Administrative Code because officers kept misleading the jury about being “certified” when they weren’t. So now all DWI officers take the stand and talk about being  SFST certified, even though we eliminated the SFST certification program because so many DWI officers were not in compliance.