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.

Published on:

A little over a month ago I detailed my journey into the Android realm after leaving the safe and familiar grounds of Appleland. To recap, I had used every Iphone since they had Iphone, and rather impulsively switched to a Galaxy S5 Active. For those of you who are still thinking about making the switch, here are some updates and some more app recommendations.

I got a Moto X 2014

I dumped the S5 Active and swapped it out for the Moto X. I was intrigued by the efficient software design and the built in Moto Assist features. The Moto X runs a near stock version of KitKat and has some add ons that are useful, but I don’t use them as much as I thought I would. If you spend much time reading Android forums you’ll notice that the Samsung TouchWiz software is not well thought of UI. Well, let’s back up for a second and make something clear.

Unlike the Iphone, Android phones all have a slightly different UI (user interface) along with apps you don’t want (bloatware). Your phone will have the software Google designed, Android, with a bunch of extra shit the manufacturer and phone carrier throws on top of it.  Some of these features are useful, some are not, all take up memory and RAM though. So unlike an IPhone, where the software is uniform on every device, each Android phone has a slightly different feel. Now you can switch the UI out with different launchers (Google Now and Nova are my favorite) but it’s important to understand your native UI and bloatware as well.

Back to the story, so I decided to take the S5 back and spent a good amount of time considering my options. One thing that can lead to near mental paralysis of choosing an Android phone is that their are some many great phones that are pretty similar. R/PickAnAndroidForMe is a monument to the challenge of choosing between excellent and slightly different options. The best phone from each manufacturer is referred to as the flagship; right now that’s the S5, Nexus 6, Moto X 2014, LG G3, HTC One M8, OnePlus One and  Sony X3. 

Why did I choose the Moto X 2014? First, I wanted something with a screen over 5 inches. I wanted an efficient UI. I wanted an AMOLED screen. I wanted forward facing speakers. I was intrigued by the design and as mentioned the Moto Assist features. The Moto X is an Iphone-esque version of an Android phone. It doesn’t have as many feature as the S5, but the ones it has are more useful. It’s an efficient design, both the software and hardware, and aesthetically pleasing.

How big of a screen do you need? I thought a 5.2 inch screen would be a challenge but you get used to a new phone size very quickly. Now Iphone 5 and belows seem ridiculously small. The screen is so tiny! I thought the Nexus 6 would be too large and didn’t consider it, now I think it would not have been an issue. So unless you have tiny hands, go for the biggest screen you can stand. Lawyers need a lot of screen real estate to read documents etc, and a big screen makes taking a tablet to court unnecessary. I used to take an Ipad to court for my typical non-contested hearing/announcement docket. Now I usually just take my phone and some pens. I also rarely bring the physical file since we scan everything.

More Apps to Consider

IFTTT- Stands for “If This Then That”, and it’s a much more user friendly version of tasker and Llama. If you want to automate your phone and don’t want to spend a lot of time doing it, this is they way to go. Two “recipes” I use are 1- my phone automatically switches to silent when I enter the courthouse. 2- My phone stops looking for wifi signals when I leave my house (that way it’s not using battery life searching for networks while I drive).

Pushbullet- This syncs information between your phone and computer. It can send texts to your computer, you can send files to your phone etc.

Google Keep- This is a great notes/reminder product and has become my goto to do list and idea storing area. If I think of an idea for a case, or for a blog post I jot it down in Keep and set it to remind me again in a day or so.

 

 

 

Published on:

I have a lot of 17-19 year old clients who feel targeted by small town police departments. These young adults are usually in my office for a pot case, or maybe even a DWI or DUI (DUI is only for those under 21 in Texas) and they tell a similar story; that the police pull them and/or their friends over consistently and they don’t know how to stop the harassment. First, advice for parents.

For Parents

If your child is being pulled over frequently, or if he has friends who are targets or have been arrested recently then it’s important that you have him (it’s almost alway a male) meet with a lawyer and get him either on retainer, or establish a relationship so your he can lawyer up when he is pulled over.

Why does this happen? Teenage boys are targeted because a) they are politically powerless, no one cares if teeangers complain about the cops b) they do dumb shit often and c) drug arrests are the low hanging fruit for cops, it looks like real police work, except it’s much easier. So if you pull over enough teenagers you can write some easy tickets ($$ for the city) and maybe find some pot; then you feel like you solved a real crime and make your stats.

Let’s talk about point b) so more. Teenage boys commit crimes and parents want their children to be held responsible. I get that, but what parent should not want is the criminal justice system to hold your child responsible. This system is too stupid, corrupt, violent and arrogant to know what is best for your child.

Parents come to my office thinking that the criminal justice system is fair, and targets bad guys, not people like their child who made a mistake. Certainly the system won’t want their child’s future with a drug conviction, or with a deferred probation that will never be expunged? Such optimism is the telltale sign of a lack of experience with courts and cops in Texas. Texas prosecutors still run on being the toughest, and guess who they are going to be tough on? Your child. Why is that a problem? Because in Texas the criminal justice system is rigged from arrest to trial to benefit the State, the police and the prosecutor. Google Michael Morton, Ken Anderson and John Bradley for more info.

Don’t get me wrong, you could get lucky and have fair and decent people in your local police and DA’s office, but you’d be shocked at how many could care less about your child’s future. To be fair, most prosecutors give better recs to those under 21 as a general “kids are dumb and make mistakes” policy. But not all, and it’s not uncommon for children whose parents cannot afford quality representation to see their child locked up for weeks just trying to make bail. Forget drug free zones and prior convictions, the real sentence enhancement in Texas is for the crime of being poor. But that’s beyond the scope of this post.

Pro Tip- Hire the best lawyer you can afford for your child. A great defense team can be expensive, but think of this like college, it’s going to affect the rest of their life, so it’s worth it to pay for a better outcome.

If a prosecutor is trying to destroy your 17 year old son’s future with a terrible plea rec the system works against your child, and as defense lawyers our options are much more limited in adult court than in juvenile court. Juvenile court focuses on rehabilitation and the future of defendants. Adult court focuses on punishment and the past. You are what you did in adult criminal court, nothing more. Where in juvenile court you are who you could become.

Let’s talk about being an adult in Texas for a second.

In Texas once your child turns 17 he or she can’t vote, can’t drink,  can’t buy smokes or even lottery tickets, but he or she will be charged as an adult if arrested.

What kind of state hates their young adults so much that it puts high school kids in adult jail, and in the adult criminal justice system? Why do we want to ruin their future with lifetime convictions? FYI- All convictions in Texas last a lifetime and even petty crimes like possessing a joint means up to 180 days in the county jail. What idiots thought of that?

We seem to understand that the brain of a 17 year old may not be ready to drink or vote; but that same brain is perfectly capable of perfectly following the thousands of laws Texas has and should be punished accordingly?

What to tell your child if he or she is confronted by the police

1. In Texas all you have to do when confronted by cops is ID yourself, and present insurance if you are driving.

2. Never answer any questions about illegal activity. Ask for a lawyer, and keep a lawyer’s business card on you. If asked about anything illegal, ask for your attorney. I don’t care if the cops find weed in your pocket, don’t say or admit anything. In fact, don’t answer any questions, cops are better at interrogating you than you are at answering their questions.

2a. Cops are allowed to lie to you to get you to confess. They can tell you your friends snitched, or they found your DNA on the waterbong and you are going down like OJ. But it’s usually a show to get you to talk. Again, shut up and ask for a lawyer.

3. Ask if you are free to go. If the answer is yes, go.

4. Never consent to a search. Don’t stop the cops from searching you, but never agree to it. Ask for a lawyer instead.

5. Be nice and calm. Cops often bully young adults to get them to confess and consent. Stick to the script and be polite. The less you say the better.

Should we move? Or switch schools?

Yes. The system isn’t going anywhere, the local police aren’t going anywhere. Moving is expensive, but so is constantly being arrested for petty nonsense.

What about filing a complaint against the police?

You know who investigates complaints against the police? The police. Guess how that works. I mean, do it if you have a concern, it’s good to make a record, but don’t expect the local PD to do anything beyond finding clearing their colleague.

 

 

 

 

 

 

Published on:

I’ve been using IPhones as long as there has been IPhones. I recently became upgrade eligible (Christmas for tech geeks) and instead of getting the IPhone 6/6 Plus I decided to switch to Android and purchased a Samsung Galaxy S5 Active. I’m a week into this and I wanted to share the experience for those of you thinking about making the switch. I chose the Active version of the S5 with the hope of going without a phone case. It feels much less delicate than my Iphone and I like not having an extra layer of plastic around my phone.

Should you switch? TLDR

I know this is what most of you want to know, so I’ll cut to the chase. If you are somewhat tech savvy, use google apps and enjoy technology with less limitations then yes, switch to Android. You won’t miss IOS/Iphone and you can still use your old Ipad if you do. If you just want a phone that works and is simple to use, stick with Iphone. Android isn’t especially difficult to use, but you have to know/care enough to go through the settings for different apps to get the most out of Android.

Why not IPhone 6?

I have a 5S and I have dutifully purchased nearly every IPhone upgrade over the years. I have enjoyed them all with the exception of the Sprint 3GS we had. The Sprint network has unlimited data, at dial up speeds. I have never been satisfied with the size of the screen on the Iphone. It’s just hard to read, I jacked up the font size but couldn’t make much use of PDF files in court or on the road. My goal was to have a phone that I could use as a standalone in court for announcements and quick resets etc. So a bigger screen was a must. So why not the IPhone 6? Bigger screen = no more problems right? Maybe. But for the past 6 years our office has run on Google Apps for email/calendars/drive etc, and as the CTO of Guest and Gray Law Firm I have required that all work computers use Chrome. I have been more than satisfied with Google’s products and I was looking for more….

Personalization

Before making the switch I had never used an Android phone for more than a few minutes. But being a tech junkie I was intrigued by the idea that Android was more flexible than IOS. That IOS was a safe and easy phone for the masses, while Androids could be bent to the user’s will with more options, features and customization. That seemed to fit my profile, so why not switch and see what happens? The biggest innovation on the new Iphone is the screen, and I already had a Ipad, so I went to the Forney ATT store made the switch to Android.

Apps, Widgets and Rooting, Oh My!

When you first make the switch from IOS to Android one thing you will notice is that the layout is customizable to a degree not available on the Iphone. You can download launcher apps to customize the look even more, but I’ve stuck with the stock TouchWiz for now. I did audition the Google Now launcher, but went back to TouchWiz.

Let’s talk about widgets. Widgets are apps that are up and running on phone at all times. Just you like keep an email tab open on your browser, you can do the same on Android with the gmail widget. You can also combine widgets and apps on the same screen. For example, I have my calendar widget on a page with other work apps. That way I can quickly view my schedule and access my other work tools all on one page. I also like to compartmentalize my pages into work/not work. It makes me feel like I have some work-life balance.

Apps- 

Email- The Gmail app. Samsung has it’s own bloatware email app that I disabled. I can’t say I tested any other email apps, gmail works well and I am satisfied, for now. One thing that I miss from IOS is that you can’t automatically dial numbers that are in an email. So if my assistant emails that I need to call Prosecutor Bob, I can’t click on the number in the email to call him. First world problems.

Calendar- The native Samsung Calendar isn’t bad. I use that, and  I’m trying out Google’s Calendar in Agenda view. I’ve never liked monthly view on a phone, agenda is much easier to navigate.

Browser- Chrome and Firefox Beta. Firefox has two features that Chrome lacks, extensions/apps and customizable search. Firefox for Android allows you to use browser extensions just like you would on your computer. The price for using extensions is generally a slower browsing experience, but you can decide which apps are worth it. Firefox also has wide open search options. In Chrome, you can only choose from a few search engines, basically google and some other really shitty search engines like AOL (really) and Yahoo. Firefox allows you use any search box you can find and add it. For example, I set up my firefox to search google, reddit, wikipedia and duck duck go, all from the search box. I can choose which I want as I type what I’m searching for. Chrome is by far the fastest browsers I’ve used on Android, but the search function is woefully limited. I also tried out CM’s browser and Dolphin. I liked CM more than Dolphin but it was a little slower than Chrome. I will keep auditioning CM/Chrome/Firefox Beta until I choose a winner.

Why Firefox Beta? I found it to be faster, and it hasn’t crashed yet so for a Beta it’s pretty solid and bug free.

Music- Spotify. Same as IPhone.

VPN- Freedome It’s easy to install/setup, and only $30 a year. I tried out Hotspot and Private Internet Access as well and Freedome is the most consistent and simplest so far. As a lawyer if you don’t use a VPN you shouldn’t use public wifi. This will keep you from being tracked, and keep you safe on public wifi’s while protecting your ISP anonymity as well.

Keyboard- Google. Once you start swipe typing you’ll never go back to pecking at those tiny keys. These keyboards both offer the ability to swipe from letter to letter and the words auto generate. Much faster, google keyboard has a bug in it that makes it switch from letters to numbers, and it appears to be more pronounced for us lefties.

Google Drive- I have never been a big fan of google drive. It’s clunky and not especially great at document editing or storage. It seems like something Microsoft would make. However, Drive and it’s associated apps (Docs/Slides) have undergone some major updates and are way less shitty now. To the point I actually use Drive now more than DropBox now on my phone. Android and Drive/Docs work very well together and it made me take another look at their computer browser version as well. If you haven’t used Drive/Docs on your computer or phone in a while it’s worth giving them a look again.

What I don’t like/miss from my Iphone

As I already mentioned I cut touch a number in my Iphone email and it would call instantly. I’m still working on that for Android. Itunes U, I haven’t found a comparable product for Android. I miss the instant flip up screen on the Iphone that had the brightness phone etc. The Android version is on the bottom, which for a big phone is less than ideal. It’s also very small and not as easy to use. Swiping left/right in a browser doesn’t do anything on Android. Encryption was automatic on the Iphone, where on the Active S5 you have set it up and install a 6 digit passcode, no PIN or other way to unlock the phone.

If you are a lawyer considering the switch let me know and I’ll be happy to share my experience with you.

 

 

 

 

Published on:

We convict a lot of innocent people in Texas. For a lucky few defendants, we figure out they are innocent before we take away years/decades of their life or put them to death. Let’s say you are arrested but it turns out that there was no probable cause and the charges are dropped, can you sue and hold anyone in the government accountable? Sure you can sue, the better question is, can you win? That can be tougher that you’d think, even for blatant constitutional violations, like arrests without probable case.

The reason for this is qualified immunity. Qualified immunity is a monument of police state judicial activism, in which our federal courts invented a doctrine that shifts the costs of wrongful arrests (sitting in jail, bail money, hiring a lawyer etc) to the public. What started as a limited common law defense grew as the court added more and more hurdles for Plaintiffs to clear to bring a case and survive summary judgments.

Again, the federal doctrine of qualified immunity is not a law passed by Congress, federal judges just made it up, and it protects officers who make mistakes on the job. I don’t have immunity in my law practice, you probably don’t have immunity in your job (although negligent doctors in Texas bought practical immunity with the help of TLR), but government actors do.

You may remember that lawsuits against the State government for violations of the US Constitution are called 1983 suits. So if you want to sue the local police, sheriff or jail you would probably use a 1983 suit and file in federal court.

What do you have to prove in a false arrest case? That the police made an arrest without probable cause, and considering the totality of the circumstances, acted unreasonably.

Here’s a nice run down from a recent case.

To demonstrate the inapplicability of the qualified immunity defense, the plaintiff must satisfy a two-prong test: “First, he must claim that the defendants committed a constitutional violation under current law. Second, he must claim that the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir.2005) (citations omitted); see also Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990), abrogated on other grounds as recognized in Martin v. Thomas, 973 F.2d 449, 455 (5th Cir.1992) (“A defendant is entitled to qualified immunity unless, ‘on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue….’ ”) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court may conduct the two-pronged inquiry in any order. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Crostley v. Lamar County, Texas, 717 F.3d 410, 422 (5th Cir. 2013)

 

Published on:

The NFL’s response to the Ray Rice domestic violence case has generated some much deserved criticism. But what the media rarely talks about is the domestic violence problems in the law enforcement community. Let’s compare the problem the NFL faces with domestic violence vs Law Enforcement. Here is a case from California in which an officer brutally pummels a 51 year old grandmother. This video garnered some national press, but nothing like the Ray Rice case. That probably has more to do with our celebrity culture, but it is a sign that while we are focused on pop culture and sports, we are ignoring a much larger group of victims and assailants.

Click the link above and watch the video. Both videos display a level of violence and misogyny that are shocking, but only the NFL is being taken to task for it’s response to violence against women. With the sheer amount of police violence in America today maybe another assault on a suspect is just noise. In the United States the Government doesn’t even track police shootings, much less beatings.

Now let’s look specifically and law enforcement domestic violence. Here are some stats to scare the shit out of you from the National Center of Women and Policing-

- Law Enforcement families are 2 to 4 times more likely to experience domestic violence as the general population.

– The most common punishment for a police officer who commits domestic violence is counseling. Not a suspension or termination.

– A study from San Diego showed that whereas 92% of domestic violence cases referred were prosecuted, only 42% of cases against police officers were prosecuted.

This would also be a good time to remind the public about the blue wall of silence. Cops don’t snitch on other cops. There is also the concept of “professional courtesy” in which cops don’t arrest or investigate other cops. Put those two together and you create a situation where abusive dangerous officers are left to prey on the public, and their families. 

So while we are outraged that a guy who plays football did not get suspended long enough, or the assault was not taken seriously by the NFL we are ignoring an epidemic of police domestic brutality. There are few hundred NFL football players, meanwhile there are hundreds of thousands of law enforcement officers. The real epidemic of violence against women is by those wearing a badge, not carrying a football.

The militarization of law enforcement has spawned a culture of violence, confrontation, and control. Is it any surprise that this approach follows some home from work?

 

Published on:

So you have been arrested and you are worried about how this will affect “your record”? Well, you should be. In Texas, convictions last forever. And by forever, I mean it’s on your record until you get a pardon but in Texas we don’t really do pardons because our Governors hate defendants so, forever. However, part of our defense strategy is finding a way to minimize what records are available when you case ends. So let’s start with what exactly is your “record?” When people talk about their record they usually assume there is some formal criminal history branch of the government , perhaps in Austin, that has all the bads thing you done in a file somewhere.

Not exactly, whenever you make contact with the criminal justice system in Texas records are created. When you are arrested there is a mugshot, bond paperwork, arrest affidavit etc. Those are all public records. When you are case is filed more records are created. There is an information or indictment, a file at the clerk’s office with more information about your case, and perhaps some online information that the county provides.

Part of your defense lawyer’s job is finding outcomes that maximize your ability to get rid of these documents. For example, if you get deferred adjudication probation in Texas you are not eligible for an expunction, but you may he eligible for a non disclosure (having your records sealed). Some offenses can not be placed on deferred probation (DWI etc). So if you want your DWI “off your record” at the end of the case, you may have to have a trial and hope for a not guilty verdict because not guilty verdicts can be expunged.

It’s one reason I encourage clients to participate in pre trial diversion programs if they are offered. Because pre trial diversion cases can be expunged as well (in Dallas they call this a conditional dismissal or memo agreement).

Another component of your record is what shows when the case is finalized. That is, how does the judgment read and how will that affect your future employment chances? For example, if you are on deferred probation you have plead guilty (or no contest) but you have not been found guilty. So if a job application asks you about convictions, you can say you don’t have any. But if a job applications asks about arrests or pleading guilty, then you will have to provide details.

This is also another reason to hire a lawyer immediately after you are arrested. If you get a lawyer on the case right away there is a greater chance that a positive result can be achieved before the case is filed. Preventing a case from being filed, or having the charges reduced before they are filed is a big win. For example, we had a case recently where a client was facing a potential 25-99 year prison term on an assault charge. We got started right after the arrest and worked out a misdemeanor diversion early. We had the case investigated and ready to present to the prosecutor before the prosecutor had even had a chance to look at the file. If we had not been hired early, then the State could have indicted our client on life in prison felony, and those records would have been out there until we got the case finalized.

Your criminal record is one of the most important aspects of the plea bargain process and your defense lawyer should be able to explain what your options are if you are accept any deal. Remember that deferred cases can not be expunged, and that if you are concerned about your criminal history hire a lawyer immediately after you become a suspect.

 

 

 

Published on:

In Texas our pro conviction appellate courts have blessed the practice of law enforcement profiling drivers and investigating routine traffic stops as drug trafficking.  This practice involves an officer deciding that you are a drug dealer and then following you until you commit a traffic violation.

I thought racial profiling was illegal in Texas?

It is. But to get anywhere with that you an officer honest or dumb enough to testify that race was a factor in his investigation. LEO learns quickly to keep those thoughts to himself. Our numerous traffic laws allow great cover for profiling. DPS knows to just follow who they want to stop until they can find some evidence of a traffic violation. That’s considered great police work in Texas. We allow and encourage non-racial profiling. Which means a DPS Trooper can list any reason but race as a reason to follow you and wait for a traffic violation and then search for drugs.

So what do cops look for when they want to profile a driver for transporting drugs?

This brings us to our case of the day, Neil Lawrence vs. The State of Texas.

What happened?

Neil was driving through Potter County (Amarillo) with a lot of pot in his car. Neil is spotted by a DPS Trooper. The DPS Trooper admits that he immediately profiled Neil as a drug mule because “it was a clean car, with a single male driver, exhibiting an out-of-state license plate, and traveling east.” Neil’s car was eventually searched and the cops found a lot of weed, which holy shit it’s embarrassing how our state still considers possessing too much forbidden plant material an offense worthy of prison. What is wrong with us? Anyway, Neil was convicted and filed an appeal because the officer stopped him for a traffic violation, but investigated the case as drug trafficking. The conviction was upheld on appeal.

Lesson No. 1 from this case- Don’t be have out of state plates and drive alone in a clean car, otherwise the cops will assume you’re riding dirty. This is common practice for DPS in many counties. Traffic tickets are boring and it can feel really important to make a felony drug bust, so DPS Troopers will have fun by trying to guess who has drugs on them and bringing out their Clever Hans K-9 team.

And guess what? There isn’t any penalty for Troopers who guess wrong and treat an innocent driver as a drug trafficker (unless they go for the DPS favorite roadside body cavity search). Locally, the go-to DPS stop for profiled drivers is defective license plate lights, or a “dirty” license plate. If you get stopped for that on 80, 20, or 30 headed east, you can expect a K9 unit in your near future.

Things not to do when you are transporting drugs and stopped by DPS.

Neil was stopped for driving on the shoulder and the Trooper immediately went into narcotic investigation mode. Now the 4th Amendment usually requires an officer to detain a driver only as long as necessary to investigate a traffic stop, but we have effectively repealed the 4th Amendment in Texas to make it easier to uphold drug convictions. Ergo, we’ve expanded that rule to allow for DPS fishing expeditions for drugs if DPS can list a few reasons to think you have drugs.

So what makes DPS think you are carrying drugs? In Neil’s case the officer listed the following as reasons to profile Neil as a drug dealer-

– Neil’s vague answers to questions propounded by the officer regarding his destination
– “erratic” hand and foot movement indicative of nervous behavior
– nervous behavior growing when, according to the trooper
– Neil didn’t act happy enough when the Trooper said he would get a warning
– Neil’s failure to make eye contact, volunteering of unsolicited information, driving a rental vehicle under an expired rental contract and not knowing that it had expired, and having flown from Pennsylvania to Phoenix to drive to Oklahoma.

Lesson No. 2- Don’t act nervous. Nervousness alone isn’t supposed to be enough to justify an extended investigation, but it can be a factor. So be cool.

Lesson No. 3- Don’t drive a rental car if you are transporting drugs. Really, it’s something that DPS looks for. This goes double for an out of state rental car.

Lesson No. 4- Don’t be alone, but if you are going to drive with someone else have a back story that makes sense and that you both understand. Drug stop investigation 101 is to separate the driver and passenger and see if their stories match. So get the details of the backstory straight. Which brings me to no. 5

Lesson No. 5- Bullshit cover stories are easy to spot and will be used against you. Job interviews, family reunions, visiting a cousin or friend are pretty common cover stories. But it needs to make sense logistically and you better have the details down about your trip. That is, don’t say you flew to Las Vegas to borrow a car from some guy, but you don’t remember his last name or phone number, and you agreed to drive to Louisiana and leave the car with his cousin Peanut, who lives in a blue house near the creek,  but you don’t know the address. Which leads us to lesson No. 6.

Lesson No. 6- It’s always best to say NOTHING. Really. In Texas, all you have to do is hand over your license and insurance. After that, shut up. If you have to talk ask if you are free to go, ask if you are being detained, ask for a lawyer, assert your right to not answer questions, and never consent to a search. Be polite, and if the police search anyway, let them. Never try to stop a search.

Published on:

As you should be aware Guest and Gray’s criminal defense team has an office in Rockwall now. We don’t handle a lot of ticket level offenses, but I spent an hour in the Rockwall Municipal Court this afternoon and thought I’d share the experience.

Where is the Rockwall Municipal Court?

Well, it’s no longer near downtown, and your GPS may not put in the right location unless you use the 2860 Williams Street Address instead of 2860 Highway 66.  Here’s

From downtown Rockwall take 66 East, you have to turn left on Fannin because of construction, but stay on 66 and drive past some churches until you are sure you’ve past it and then it appears on the left right after Rest Haven funeral home.

From I-30 take 549 north and then turn left on Williams/66 and it’s on the right. That’s the best way to go, just take 30.

I’m a lawyer, how is docket handled?

You check in the with the bailiff in the courtroom. He will hand you your file. Then you sign the attorney sign in sheet on the table the city attorney is sitting. Get there early or you could be sitting for a while. If you reach an agreement you take that in front of the judge, she signs it and the court clerk gives you a copy to take to you client.

I can’t make court and need a continuance, what do I do?

You have send in a motion for continuance and least 24 hours before hand. I’d call the court and let them know. Here is the court’s own motion for continuance you can use.

Rockwall Municipal Court Motion for Continuance

I have warrants or outstanding fines  and need a payment plan-

Here is the financial information form to request a payment plan.

Rockwall Municipal Court Financial Information form

How do I request discovery in my ticket case?

With this form!

Rockwall Municipal Discovery Records Request

 

 

 

Published on:

First, you should understand what your rights are, and then we can discuss why the police did not read them to you.

You do not have to wait for Miranda warnings to remain silent or ask for a lawyer!

In Texas you only have to ID yourself if you are detained. If you are driving you have to provide proof of insurance. Beyond that you can remain silent, ask for a lawyer, refuse to answer any questions and ask “am I free to go” and “am I being detained?” If you want to say something say “I choose to remain silent until I can speak with a lawyer.” You do not have to answer any questions beyond identifying yourself. That means you don’t have to wait for the police to Mirandize you before you ask for a lawyer and quit talking. I will say that not cooperating will make most LEO’s angry, and they will threaten to arrest you or get in your face and yell at you about how bad it will be if you don’t talk, but it’s all a show to intimidate you. Just remain calm and keep quiet. If you need to say something ask for a lawyer, and ask if you are free to go. Rinse, repeat.

That being said, the police are only required to Mirandized you when you are in custody and being interrogated. That is what we call a custodial interrogation.

Who is considered in custody? 

You are in custody when you are either formally arrested or when you are detained and restrained in a way associated with a formal arrest. You would think this would mean anyone who is handcuffed is arrested, but our pro-conviction appellate courts have held that you can be handcuffed and not be under arrest for Miranda purposes. That’s how pro-state judicial activism works, you repeal constitutional protections to save convictions. Again, don’t wait until you are in custody to shut up and/or ask for a lawyer.

We have some tests that court use to decide who is custody, such as whether a reasonable person would feel free to leave or terminate the interview, or what degree of force the police used etc. Still, it’s better to not play those games and just lawyer up and be quiet.

Why didn’t the police read you your rights?

First, because they want you to talk to them so they wait as long as possible until they formally arrest you. The longer they keep you on the side of the road talking the easier it is to convict you. This is also the reason that if you voluntarily go to the police station they will tell you that you can leave whenever, because then you are not considered in custody and they don’t have to Mirandize you.

It is the LEO’s interest to not arrest you and to keep you talking. Until the point of arrest they can ask you whatever they want without Miranda warnings. So don’t wait to be arrested to remain silent and ask for a lawyer.

What is the law in Texas on Miranda warnings?

For that we go to the Code of Criminal Procedure section 38.22-

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;
(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
Published on:

So a detective has called you up and invited you down to the local police sheriff’s department for an interview? When you arrive they will tell you that you are free to go at any time, and that they just want to get your side of the story. THIS IS A TRAP. Here’s how it works.

First, they only tell that you are free to go so they do not have to Mirandize you. You have to be under arrest and/or in custody for your Miranda warnings to apply. By telling you that you are free to go, they can ask whatever they want without telling you about your right to remain silent, or right to end questioning, or right to have an attorney present. They do this because the do not want you to have a lawyer there. They want to trick you into confessing.

Second, the “get your side of the story” line is meant to diffuse your anxiety. The detective wants you to think that they are going to help you and that they have an open mind as to what you tell them. Here’s the deal, before you show up the detective has already decided if they think you are guilty. Nothing you say will change their mind. They are going to take parts of your story that fit their theory of how are you guilty and assume those are true, they are also going to assuming you are lying if you make statements that don’t fit their theory that you are guilty. It is a lose-lose situation.

They will keep pressing you to “tell the truth” even when you are. What they mean is “you better confess to what we think you did.” The detective may offer to speak to the judge, or prosecutor to help if you cooperate. Detectives are not empowered to make binding agreements to resolve a criminal case. Only prosecutors can do that, and you need a defense lawyer to work that out. There is almost no chance that after you give a statement the detective will do anything to help you. They will laugh about your confession while they file for the arrest warrant and forward your case to the prosecutor. They will not tell the judge anything to help you. To them you are a criminal who was dumb enough to come in without a lawyer. Don’t be that guy. Lawyer up.

DETECTIVES ARE ALLOWED TO LIE TO YOU

Really, with very few exceptions the police can lie about what evidence they have against you in order to get you to confess. They can say that other witnesses have come forward naming you as the guilty party. They can say they have your DNA or fingerprints. They can say that they have video of you committing the crime. Anything they want to get you to confess. It’s a game, and you don’t have to play along. One limited is expectation is that the police can’t falsify government records and show those to you to make you confess.  Remember, this is Texas, and we convict innocent people here with alarming regularity. Our criminal appeals courts are dominated by pro-conviction ex-prosecutors who have created one of the worst criminal justice system in America.

THIS IS AN INTERROGATION, NOT AN INTERVIEW

Have you ever wondered why innocent people confess to crimes they didn’t commit? One reason is that the interrogation techniques used by law enforcement are designed to break you down and make you say things that aren’t true. The Reid Technique is one example. Again, you are not prepared to handle an advanced interrogation, you don’t have a chance.

IF A DETECTIVE CALLS YOU CALL A LAWYER

This is a legal emergency. You need a local defense lawyer, someone who knows the local detectives and CID division. Someone who can help you plan out how to proceed. Detectives understand that if you have a lawyer they can not continue to harass you to get you to come in. Your lawyer can make them leave you alone. That is what you need. I’ve written about this before, but it bears repeating. NEVER DISCUSS A CRIMINAL OFFENSE WITH LAW ENFORCEMENT EVER. ALWAYS HIRE AN ATTORNEY FIRST.