When "guilty" is not an option, hire the Guest and Gray team.

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.

DWI

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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Have you been arrested for a State Jail felony drug possession in case in Dallas, Rockwall, or Kaufman County? Are you currently a recreational meth, coke or heroin user?  Here is what you need to know.Possession of small amounts (less than one gram) of street drugs (coke, meth, heroin but not weed or some pills) is a State Jail felony in Texas.

What is a State Jail felony? Good question. Let’s start with that.

State Jail felonies are the lowest degree of felony in Texas, but it can still leave you as a convicted felon which has life altering consequences. The range of punishment for a SJF is between 6 months and 2 years in a State Jail unit. But here’s the good news, the State Jail system was originally designed to make drug addicts sit in jail until they were cured, so there is no parole from State Jail. But the State Jails filled up too fast and cost the State too much money, so if you have no prior State Jail drug cases then you are going to be looking at probation.

How does a typical State Jail felony drug possession case start?

First you get arrested and make bail. Then you wait for the lab results from DPS (Dallas convicted a lot of innocent people for possession, but the drugs weren’t drugs, so we all wait for DPS lab tests now). The DPS lab is pretty backed up since drugs are winning the drug war so you may have a delay in the beginning of your case. This is a good thing because…

Pro Tip- Get help for any mental health or substance abuse issues you have now

If you are arrested for a felony drug possession case, and you have any kind of substance abuse or mental health problem the day you get out of jail is the time you start addressing those issues. You are almost certainly going to have at least a few weeks after arrested before going to court, or a few weeks before the lab results are in and the case can really get started.

You must use that time to get yourself help if you need it. The worst thing that you can do, hold on, let me capitalize this for emphasis, the WORST THING YOU CAN DO IS GET ARRESTED AGAIN FOR POSSESSION WHILE ON BOND FOR DRUG POSSESSION. It makes my job a lot harder if you do that, it gives the State more leverage in plea negotiations, and if there is a problem with your first case, then the State has case No. 2 to fall back on.

Getting help is a win/win. If there is a problem with your case (bad stop, dirty cop etc) and I get the case dismissed, then you have a great chance and never needing to hire me. If they have you dead to rights and guilt isn’t something we can litigate effectively, then I can show the prosecutor how much progress you have made, and how willing you are to seek help and change your life. That can and does lead to better plea deals. Prosecutors are more likely to want to help someone who is working to address their own issues. As a bonus, getting treatment can be the difference between felony and misdemeanor probation because…

State Jail Felony Cases Can Be Reduced To A Misdemeanor In Texas

That’s right, if the prosecutor agrees to it then the offense may be reduced to a misdemeanor. Which, legally speaking, is kind of a big deal. Here’s a post I wrote about how that works if you are interested.

Drug Addicts Don’t Do Well On Probation

Another reason to get clean now is those with substance abuse and mental health issues have a very difficult time on probation. So if you want until you are put on probation to get help, you are probably going to get revoked which mean you may end in a State Jail facility. All jails in Texas really suck, but State Jails are worse because no gets any kind of credit for good behavior because you can’t make parole. You serve the sentence day for day. Take away that incentive, and people can act like morons or worse. Plus there is no air conditioning, seriously, none. So unless you like to sweat around a bunch of detoxing addicts you don’t want to be in State Jail.

 

 

 

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The Dallas Court of Appeals recently upheld a Rockwall County kidnapping conviction. Let’s look at the laws regarding kidnapping in Texas, and discuss the facts that led to the courts decision. Here’s the case- Wilson vs. State of Texas-  I usually go through all the facts of the case, but this one has a really weird fact pattern, and I think that’s why the defendant got probation. It just not what you think of when you think of a kidnapping. So I’m going to skip it so we can cover some other areas.

First, what’s the law on kidnapping in Texas? 

Good questions, let’s go to the opinion-

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. TEX. PENAL CODE ANN. § 20.03(a) (West 2011). “Abduct” means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or using or threatening to use deadly force. Id. § 20.01(2). “Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person. Id.  20.01(1). Restraint is “without consent” if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A)

Let’s see how this works in a facual insufficiency challenge. Factuall insufficiency is one claim you can make when you appeal a criminal conviction. Basically, you are saying that there isn’t enough evidence to sustain a conviction and you want the appellate court to review the facts of the case. But this is Texas and the game is rigged so that the State wins. Don’t believe me? Here’s the standard courts use to review the facts that lead to a conviction.

Here is the standard courts use for factual sufficiency reviews on appeal. From the opinion-

The only relevant standard when reviewing the sufficiency of the evidence is the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In determining the sufficiency of the evidence, an appellate court is to consider all evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. We defer to the factfinder’s determinations of the witnesses’ credibility and the weight to be given their testimony, because the factfinder is the sole judge of
those matters. Id. at 326.

Notice what the don’t mention? Whether there is a chance the defendant is innocent? Whether the evidence could lead to a wrongful conviction. Whether any weight should be given to the defendant’s case, and finally there is no mention of whether there are reasonable doubts in a case. It’s a fake review with a predetermined outcome, the State wins. This is one reason we convict so many innocent people, because our appellate courts refuse to look for reasonable doubts in a case, or apply the same scrutiny to criminal convictions, that they apply when a jury awards a judgment against a corporation.

 

 

 

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The City of Kemp, Texas and it’s police chief are being sued in the Eastern District of Texas for an alleged false arrest and police brutality by Robert McCollom (Plaintiff). Kemp disbanded it’s police force in 2012 and the Kaufman Sheriff’s office was going to patrol Kemp. I am not sure when Kemp PD undisbanded (rebanded?) but apparently they are out making arrests again. The City of Kemp and the Chief of Kemp PD Jimmy Council (who was rescued last year after falling down a well in Lassie-eqsue fashion) are being sued along with a Kaufman Sheriff Deputy in a 1983 action. Let’s look at the case and learn about federal civil rights lawsuits shall we?

What’s a 1983 case?

42 USC Section 1983 allows lawsuits against state actors for constitutional violations. That is, if a state or local government official violates your constitutional rights under the “color of law” (as part of their government employment) you can sue them in federal court.

What are the issues in this lawsuit?

The Plaintiff in this case is alleging that the officer and deputy used excessive force during the arrest and investigation. Basically, the Fourth Amendment protects you from unreasonable searches and seizures, which includes getting brutalized by law enforcement during a search or seizure (for Fourth Amendment purposes you have been seized during a traffic stop), and being subject to a false arrest and false charges.

In this case the Plaintiff says that he thrown onto the ground with his face hitting the concrete and pepper sprayed in the face. Actually, let’s take a moment to go into the factual allegations, which just like we are supposed to presume everyone innocent in criminal cases, we should do the same here. These are just allegations in a civil petition, which, like allegations in an indictment are just allegations.

Here’s a summary of the petition- 

Allegedly, the Plaintiff in this case was pulled over by the Chief of Kemp PD for speeding. The Plaintiff had allegedly (let’s do this, just say “allegedly” to yourself before each sentence in this paragraph). already pulled over into a gas station and was pumping gas when the officer pulled up. Council told the Plaintiff to “stay your ass in the car until I talk to you”. Council and the Plaintiff had a disagreement over how fast the Plaintiff was driving. At this time Council threatened to arrest the Plaintiff for reckless driving if he continued to argue with him. The two talked further, and Council threatened to arrest the Plaintiff for failure to ID. At that time Council grabbed the Plaintiff to arrest him. A Kaufman Deputy shows up and peppers sprays the Plaintiff in the face. Plaintiff is then charged with two counts of assault on a public servant (which Plaintiff claims are false) and it appears the two criminal cases case are set for trial in May. There is a video somewhere of all this, so that should make for an interesting criminal and civil trial (if it gets to that).

Here’s a copy of the actual petition if you want to read it in your spare time.

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If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.

The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.

So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.

What happened?

Reeder had two prior DWI convictions, and was being arrested for a DWI 3rd. The officer asked for Reeder’s blood, and Reeder said no. The officer took his blood anyway, without consent or a warrant. Reeder appealed citing the Supreme Court decision in McNeely which says you can’t do that, because 4th Amendment.

A little background here, Texas has an “implied consent” law that says everyone who drives gives up their 4th Amendment Rights  and “consents” to police searches in DWI cases. No shit, it really says that. You can revoke your “consent”, but then the State can take your license, which in a state like Texas where you must drive to get anywhere, is a big deal. The implied consent law also says that the police must take a sample in repeat DWI cases, even if you say no. You can find all this in the Texas Transportation Code Section 724.

What are the issues?

Does the 4th Amendment apply in Texas? Can a transportation code statute overrule the United States Constitution? Can a Texas court of appeals ignore the Supreme Court?

Holding-

The Texas Transportation Code is an exception to the 4th Amendment. Really. From the opinion.

Because Reeder’s blood specimen was obtained in compliance with Section 724.012(b)(3)(B) of the Texas Transportation Code, a warrant was not required. The trial court’s refusal to suppress the blood-draw evidence was proper.

I’m wondering if any of the judges who authored this opinion actually read McNeely vs Missouri. Because the McNeely case was an implied consent case. McNeely was asked for his blood and he said no, the officer took it anyway. If implied consent laws were somehow an exception to the Constitution, then the Supreme Court could have easily upheld the conviction in McNeely.

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When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look.

When Texas set up the ALR hearing system to suspend drivers licenses after DWI arrests they had breath tests in mind. That is, the State would know the bac result from the breath test at the time the defendant was arrested, so if the defendant failed, then the cops would notify DPS to suspend their license.

The law in Texas states that after being arrested you have 15 days to call DPS and ask for an ALR hearing to challenge your license suspension. If you don’t request a hearing, then your license will be suspended after 40 days (from the date of arrest). If you do request a hearing within 15 days your license is good until the hearing and then only if the judge rules against you (which usually happens, the ALR game is rigged so that DPS usually wins, because tuff on crime).

With a blood test we don’t know the result right away, and we may not know the result for months. DPS is backlogged with blood cases, and their labs aren’t not for quality work so rushing them will only make it worse.  DPS can only try to suspend your license if you are over .08. So when our firm requests an ALR hearing on a blood case we usually get a letter back stating there is no case against our client. Why? Because they don’t have the blood results in.

Once DPS gets the blood result in and decides to suspend a suspect’s license, they send the notice to the suspect, not to the lawyer. Why? Because they are hoping that a DWI suspect will throw the notice in the trash, and they know that our firm will request a hearing to fight the suspension.

DPS should not be sending notice to individuals who have legal counsel. My firm does not contact individuals when we know they are represented by counsel, it’s unethical. But the usual ethical rules don’t constrain DPS, they make a lot of money suspending licenses, so if they need to cheat to win, they will.

So, if the cops took your blood and you hired a DWI lawyer check your mail for letters from DPS. If you receive notice that DPS is moving forward with a license suspension notify you must immediately contact your lawyer. The letter won’t look like anything special, so be vigilant and don’t be a victim of DPS blood draw ALR scheme.

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Being a DWI defense lawyer, or defendant, is tough in Texas. One reason is that our appellate courts will go to almost any length to uphold a DWI conviction. We have pro-conviction judicial activism to an amazing degree in Texas. Don’t believe me. Let’s go to the case of the day,

Kristen Aleia Simpson v. The State of Texas

Kristen was convicted of DWI after a jury trial. But it was a rigged trial. Rigged in the fact that the judge allowed jurors who expressed a bias towards the State to remain in the jury pool. Did you think that jurors are not supposed to be biased? That they are supposed to be fair and neutral? That’s only fair right?

Wrong. Bias is fine in Texas, as long as a juror is biased in believed that law enforcement witnesses are always credible, or more credible than other non cop witnesses. What happened?

From the opinion-

During Simpson’s trial, potential juror number three stated that he was good friends with a police officer, he believed officers were more credible witnesses, and the officers’ training caused their testimony to “carry [ ] more weight,” in his opinion. However, after additional instruction from the trial court, he affirmed that he would not prejudge the credibility of any witness and would presume the defendant innocent.

Likewise, potential juror number eight began voir dire stating that he felt police officers had more credibility as witnesses. He explained that if he was unsure who to believe—after listening to all the testimony—he would go with the police officer’s testimony because police officers are more credible. After the trial court explained the importance of waiting until a witness testifies to determine that witness’s credibility, the potential juror agreed that he would not prejudge any witness.

So we have juros who already have the State winning the case before it starts. So the defense objects. Now here is a typical move judges make in a DWI trial to save pro-state witnesses. The judge will ask a biased juror if they can “be fair and impartial and wait until they hear all the evidence before making a decision”. And guess what, every potential juror says yes to the judge. First, because jurors are afraid to disagree with the judge, and second, because jurors always think they are fair and impartial, even after admitting their biased for the State.

This is allowed because our appellate courts want to uphold convictions at all costs, so we’ve got case after case explaining how it’s ok for pro-State biased jurors to serve.

From the opinion-

The Court of Criminal Appeals repeatedly has addressed challenges for cause against potential jurors who state a belief that police officers are more credible witnesses. See, e.g., Feldman, 71 S.W.3d at 747; Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999); Smith v. State, 907 S.W.2d 522, 530–31 (Tex. Crim. App. 1995); Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998). In doing so, that Court has refused to require complete impartiality. See Jones, 982 S.W.2d at 389. 

Did you read that last sentence? I’ll go ahead and bold it for you. Ok. There. See where our State’s highest criminal court has declared that complete impartiality isn’t required for jurors. That is, it’s ok if they are biased for the State, this is Texas and we have a conviction machine to maintain.

More terrible caselaw from the opinion-

Thus, a potential juror who says that he would tend to believe a police officer…more than another witness may serve on a jury. See Ladd, 3 S.W.3d at 560. A potential juror who says he would give more credibility to the testimony of a Texas Ranger, likewise, may serve on a jury. See Smith, 907 S.W.2d at 530–31. As long as these veniremembers agree that they can follow the law as explained to them, regardless of their personal beliefs and leanings, it is within the trial court’s discretion to find them suitable for jury service and deny the challenge for cause. See Feldman, 71 S.W.3d at 747; Davis v. State, 329 S.W.3d 798, 811–13 (Tex. Crim. App. 2010) .

So it’s ok for jurors who have already decided that the State’s witnesses are more credible than anyone else to serve on a jury as long as a judge can get them to say “ok” after some boilerplate questions about being fair.

But wait, I’m not done yet. The judge in this case proudly displayed a MADD plaque on the bench. So not only is a biased jury ok, so is a biased judge.

From the opinion-

In her fifth and sixth issues, Simpson complains that the trial judge refused to remove a small MADD plaque that was leaning against the back wall behind the judge’s chair during her DWI trial. Simpson objected to the display of the plaque and requested the trial court remove it for the duration of trial. The trial court denied the request.

I won’t bore you with the details, but the defense lawyer objected and asked that the judge recuse himself since he is obviously biased against DWI defendants if he is a member of MADD. But again, this is Texas and the appellate court found nothing wrong with having a judge tell the jury how he expected them to rule with his MADD plaque. You have a right to a jury trial in Texas, just not a fair one.

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19-year-old shot by Dallas police officer sues in federal court for ‘a very large sum of money’ | Dallas Morning News.

DMN reports on a very quickly filed lawsuit following yet another DPD shooting. I wonder if the new 72 hour rule for DPD officers will play a role in this case?

I get contacted fairly often regarding allegations of police misconduct and people want to know if they can sue the cops if they are abused or treated unfairly. Let’s go over the petition in this case, titled Kelvion Walker vs. Amy Wilburn to understand the basics of a federal lawsuit against law enforcement.

Who is suing who in this case?

Kelvion is the guy who got shot. Amy Wilburn is the shootee.

What is the cause of action? What is he suing her for doing, besides shooting her obviously?

It’s not enough to say you got shot by law enforcement. Cops shoot people all the time and no one gets sued. Instead, you need to find a constitutional violation. In this case the Plaintiff (guy who got shot by DPD) is claiming that his constitutional rights were violated (4th, 5th, and 14th Amendments respectively) and he is filing suit un USC 1983 and 1988. Lawyers often call these suits “1983″ cases.

What does USC 1983 say?

It was enacted as part of the 1871 Civil Rights act in order to let people sue the KKK and Southern governments that were in league with such entities, but it’s not limited to Klan lawsuits.

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, 

That means you can sue a local government actor who violates your constitutional rights.

So how is getting shot a violation of the Constitution? 

Good question. Shooting a suspect is considered a “seizure” for 4th amendment purposes. In this case, Kelvion is claiming that his rights were violated because the shooting was an unlawful search and seizure , an unlawful use of force, and that it violated his right to receive medical care while in custody (the Dallas jail faces suits for this often). 

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If you read criminal appeals you know that our appellate courts desperately want to help the State by upholding as many convictions as possible on appeal. They accomplish this in a few ways, one is by letting the State break rules and laws as often as possible without consequences. How does this look in practice? Our appellate courts embrace the idea of “harmless error”; that the State is making conviction omelettes it’s ok to break a few eggs along the way.

The Rules of Evidence are a great example. These are the rules that govern what kind of evidence can be used at trial. If the Defense objects at trial and the judge erroneously lets the evidence in anyway the idea is that you can file an appeal and have another court fix this mistake by granting a new fair trial. But this is Texas, and we have a conviction machine to protect, so on appeal the courts look for anyway to justify the fact that while the State may have broken the rules, that’s ok because we got the “right” result, which is that the Government got their conviction. The “finality of convictions” is a key phrase to look for in appellate opinions, it always accompanies injustice.

Let’s go to our case of the day.

Copeland vs State

What happened?

Copeland was convicted of injury to a child and sentenced to 50 years. The State needed to piss off the jury to help guarantee a conviction (emotional arguments work well in cases involving children) so the State introduced some old Facebook posts from the Defendant, because we all know that each and every Facebook post we’ve ever made truly reflects who we are and should be held against us forever.

From the opinion-

Copeland posted many mindlessly obscene Facebook status updates, which the State sought to admit, including one post on August 4, 2011, declaring, “[I] like kicking poor helpless things,” and another on September 6 stating, “God dam [sic] kids taking my candy I will f*** a kid up.” Copeland’s counsel lodged a relevance objection and argued that the probative value of the posts were substantially outweighed by unfair prejudice.

What do the posts have to do with the charge Copeland injured a child months later? Good question. You see we have rules of Evidence that are supposed to prevent the State from putting on a case that this Defendant is a jerk, so we should just convict him of whatever he is charged with (404). That is, evidence that the Defendant is of poor character is not admissible to prove specific conduct. Courts are supposed to weigh this evidence to see if the probative value isn’t outweighed by unfair prejudice to the Defendant (rule 403). That’s the idea, but this is Texas so you probably no where this is going. From the opinion-

While we find that the admission of the Facebook posts was erroneous, we deem the error
harmless. Error in the admission of evidence constitutes nonconstitutional error that is subject to
a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Under Rule 44.2(b), any nonconstitutional error
that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Barshaw v.
State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). “A substantial right is affected when the error
had a substantial and injurious effect or influence in determining the jury’s verdict.” King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A conviction should not be overturned for
such error if this Court, after examining the record as a whole, has fair assurance that the error
did not influence the jury, or had but a slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex.
Crim. App. 2002).

Harmless error is the name of the game in Texas. The signal to prosecutors is clear, go ahead and break the rules, YOLO, and the court of appeals has got your back.

I’ve always wondered how do appellate judges determine if evidence “did not influence a jury”? They don’t actually ask the jury, that’s not allowed. They speak with such certainty that the jury was not affected by this evidence, but they have no basis for this belief.  They don’t know how or why a jury made a decision, so why act like they know what the possibly can’t? Why not be honest and say “Holding- Granting a new fair trial would be too much trouble for the State, and since no one cares about criminal defendants in Texas we know this is a risk free move politically ergo conviction upheld.”

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Lesser included offenses can be an important part of a criminal jury trial. Some offenses, like misdemeanor DWI, don’t have any lesser included offenses. Others, like Aggravated Assault, are full of lesser included opportunities.

What is a lesser included offense? Let’s take an aggravated assault case. The difference between an aggravated assault (felony) and a misdemeanor assault is “serious bodily injury”. Aggravated assaults require that someone suffer a serious bodily injury, where misdemeanor assault just require some injury. So if you are on trial for aggravated assault, and you want to argue over whether the injury was “serious”, then you can ask that the jury be allowed to consider the lesser included offense of assault. That means, instead of just deciding if the defendant is guilty or not guilty of aggravated assault, the jury could consider finding the defendant guilty of only a misdemeanor assault. Confused? That’s ok, this isn’t an exciting topic for the lay person.

This being Texas, we do all sorts of mental gymnastics to uphold convictions on appeal. So if you want to appeal a conviction because the trial judge would not allow a lesser included instruction, here is how the court will decide that issue (spoiler alert, they will rule against the Defendant, but this is how they will rule against the Defendant).

So what’s the law on getting a lesser included jury charge at trial?

This is from our case of the day-

JOHN JERONTON POGUE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 439th Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-11-436

To determine whether the lesser-included offense instruction requested by appellant should have been given, we follow a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (plurality op. on reh’g). The first step asks whether the lesser-included offense is included within the proof necessary to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). We compare the statutory elements and any descriptive averments in the indictment for the greater offense with the statutory elements of the lesser-included offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 37.09. This step is a question of law. Hall, 225 S.W.3d at 535.

The second step requires us to consider whether evidence in the record would permit a jury to rationally find appellant was guilty of only deadly conduct and not aggravated assault. See Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The evidence must establish the lesser-included offense as “a valid rational alternative to the charged offense.” Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008); see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011).

We review all of the evidence presented at trial. Hayward v. State, 158 S.W.3d 476, 478–79 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 673. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser-included offense charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). In determining whether the evidence raises the requested lesser-included offense, we do not consider the credibility of the evidence or whether it conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).

What kind of instruction did Mr. Pogue want?

He wanted the jury to consider a deadly conduct offense, instead of aggravated assault. Deadly conduct is a lesser included offense of aggravated assault.

So the appeals court ruled against Mr. Pogue?

Of course they did, he’s the Defendant. Their reasoning was that there was no evidence showing that Mr. Pogue did not cause the bodily injury and the difference between agg assault and deadly conduct is causation of injuries. To win as a defendant on appeal in Texas you have to be a corporation.

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I went to my first DFW NORML meeting last night and came away very impressed. Really good speakers and a lot of very friendly and enthusiastic supporters. Over 120 people showed up on a holiday weekend, which is something I wouldn’t have thought possible 10 years ago.

When I first started blogging legalization and reform of marijuana laws was still not a mainstream topic. Locally in Kaufman County I know at least a few people thought it was a strange issue for me to champion. Back then we had a few medical marijuana states, but no where near the momentum we have now.  It’s rare now that I discuss marijuana prohibition with anyone under 40 who thinks it’s a successful program that should be continued. The game has changed folks, and momentum is on the side of freedom and growing every day. Much more media attention on the issue, polls are showing that political majorities across the country support reform, and the scientific evidence for marijuana’s medicinal qualities is too strong to question at this point (unless you’re the DEA).

That’s the good news. The bad news, we still live in Texas and authoritarian social conservatives still exert too much influence on the political process. We can fix things in the Lone Star State, but like any political movement more people need to get involved. The best way to do that is to join your local NORML chapter.

Problem number 1 is that younger Texas don’t vote. Younger Texans, you are the cannon fodder for the war on drugs in Texas. We arrest a lof of Texans under 25 for simple pot possession.  Why? Because the criminal justice system needs fresh victims to keep all the bureaucrats busy, and politically powerless victims are preferred because they don’t have influence. If you want to change this you need to make your voice heard in the process. One person can’t do much, but groups like DFW NORML can exponentially expand your voice and have some effect on the system.

It’s always weird going to a new group meeting for the first time. I get it, it’s like the high school cafeteria and you don’t know who to sit with on the first day. The group has an active facebook page, and they are very welcoming. If you can’t make a meeting, just start commenting. It’s a good time to be involved in reform because this is the generation that will see cannabis prohibition end.

The next meeting is December 28th at Club Dada. You should go.