Dallas Criminal Defense Lawyer Blog

The Texas Juror Experience Project is less than 1 hour old. Here is the first juror submission

1. What was the offense?- Convenience store robbery in Fort Worth, Texas

2. What was the verdict?- Not Guilty

3. When was the trial and how long was it?-1996 or 97. Lasted about 3 days

4. What evidence persuaded the jury?- They showed a freeze-frame video. Didn't look anything like him. The clerk said it was the defendant, but the clerk had been robbed 9 times in the last year and... well, it was immediately obvious to the jury the clerk rode the short bus.

5. Was the police officer a good witness?- I don't remember a police officer on the stand. They built there case with video evidence.

6. What was the defense lawyers best arguments?- That the prosecution had to prove there case and he introduced doubts at every turn. BTW, it was a court-appointed lawyer. Old man with cast on his foot.

7. What was the defense lawyers worst arguments?- There were none.

8 If you could tell defense lawyers anything to help them be more effective, what would it be?

That's a difficult question to ask in this trial. After it was over, we were so convinced he was innocent one of the jurors asked the prosecutor if he really thought he would get a conviction. To my utter astonishment, he said "I would have been really surprised if we got a conviction in this case"!! The prosecutors admitted this to us!! Two guys on the jury that ran their own business lost 3 days pay for a case the prosecutors didn't even think they would win. They were mailto:F!#@$ pissed.. and I don't blame them. We asked why it had come to trial. You know why? Because he had done it before. He had previously been convicted of a convenience store robbery (we weren't told that during the trial - this was after) and they arrested him for this one! Then, he wouldn't accept a plea bargain. So, they put him on trial.

Labels: Texas Juror Experience Project

Have you have been on a Texas criminal jury? I would like to hear from you. Please answer the following questions. Email the results to Robert(AT)RobertGuest(DOT)com. I will post your answers on IWTS.

1. What was the offense?
2. What was the verdict?
3. When was the trial and how long was it?
4. What evidence persuaded the jury?
5. Was the police officer a good witness?
6. What was the defense lawyers best arguments?
7. What was the defense lawyers worst arguments?
8 If you could tell defense lawyers anything to help them be more effective, what would it be?

I will post any responses I get. I won't publish any names . Jurors, defendants, officers, lawyers or judges will remain anonymous.

Labels: Texas Juror Experience Project

I had a family member serve on a felony DWI jury. The charge was DWI with a minor in the car. Two days of trial and a guilty verdict.

I wanted to know what mattered to the jury and how the juror saw the tests. Here are some observations from my relative (who shall remain nameless).

1. The jurors had trouble understanding the HGN test. However, they did assume that the HGN was valid. The idea being that the police would only use a test that was valid. Too bad the science behind HGN has never been peer reviewed or subject to double blind studies. Also, the HGN has a failure rate as high as 38%.

2. It is important to attack the procedure of field tests as well as the science/results.

3. Jurors who were also mothers leaned strongly towards conviction from the beggining (the case was DWI with a minor passenger). They expressed anger over someone driving after drinking with a child in the car.

4. Some jurors will perform the field sobriety tests while deliberating. They will then compare their results to the defendants.

5. Jurors discount testimony from the defendant's relatives.

6. Performing bad on a field sobriety test is worse than choosing not to perform.

Labels: DWI

The Texas Tech Football season begins Monday at 4:00PM. Tech takes on the SMU Mustangs here in Dallas.

I live near Dallas, but I'm watching the game at home. If I know you, you are invited. Mark Bennett, Shawn Matlock, and Grits for Breakfast are also invited. RSVP via email.

For some reason Tech does really bad when I actually attend the game. The last Tech game I attended was last year against Colorado. I was in Boulder to witness a 30-6 nightmare loss to the then winless Buffaloes. I've also witnessed a 56-3 disaster against Nebraska, as well as two wins (SMU and Baylor respectively).

I only attended Tech for law school. However, my undergrad school (UT-Arlington) has no football team so I adopted Red Raiders athletics. GUNS UP!

It's hard to get very far in a debate over immigration reform without prompting the claim "but they broke the law" -- the implication being that, hey, it's not the Mexicanness we object to, it's the violation of our infallible, divinely inspired, uniformly just immigration law.

- Kerry Howley, Reason Magazine

The quote is from blog post about how prisoners are being used in Colorado and Arizona to pick crops since the feds are clamping down on illegal immigrants.

Immigration hypocrisy is laid bare. Illegals aliens can't pick crops because "they broke the law" but inmates are just fine.

This inmate labor policy must be Conservative Republican Nirvana. The War on Drugs and War on Mexican Labor provides workers to save the "family farm" just in case the billions in subsidies we already give farmers does not work. A synergy of all things wrong with the GOP.

Labels: Federal Government, Immigration

An Arlington, Texas municipal employee is in trouble for allegedly requesting $400 to make tickets "go away". Nereida Hermosillo was charged with misuse of official information, a 3rd degree felony.

When the Government takes your money to make tickets "go away" it is called deferred adjudication. When a private citizen does it, it is a felony.

Labels: Traffic Tickets

TDCAA has a thread on the new DWI fatality statistics. Williamson County DA Jon Bradley hopes these fatality numbers will convince the legislature to mandate blood/breath samples upon arrest.

Implied consent laws are repugnant to the 4th Amendment. The idea is that you give your consent to a breath/blood sample by driving. We would not tolerate implied consent to search our cars or our homes. It is the fear based rhetoric of DWI enforcement that gave us implied consent.

In Texas refusing to give a blood/breath sample only affects your driver's license. In other states, like California, it is a sentencing enhancement that mandates more jail time if you are found guilty.

JB opines that the State of California must "like to actually prosecute their cases with evidence." I know what he means, in Texas DWI are routinely prosecuted without any evidence.

No one is for traffic fataties. Traffic fatalities, including alcohol related fatalities, are a price to pay for freedom.

Here is a great quote from Ron Paul -

Government cannot create a world without risks, nor would we really wish to live
in such a fictional place. Only a totalitarian society would even claim absolute
safety as a worthy ideal, because it would require total state control over its
citizens' lives. Liberty has meaning only if we still believe in it when
terrible things happen and a false government security blanket beckons.

Labels: DWI, Prosecution

I don't enjoy blogging about "alcohol related fatalities." Every fatality is tragic, and there are real people behind the numbers. However, I don't believe in using fear to destroy the Constitution and that is what these numbers represent.

Here are NHTSA's numbers for 2006. An alleged .08% drop in alcohol related fatalities.

How do you know those numbers are an illusion? Here is how NHTSA calculates those numbers. NHTSA invented a formula to provide "missing" BAC data. The NHTSA explanation of this formula is 28 pages long. My last statistics class was 9 years ago so I can't make heads or tails out of it.

Just remember, there are 3 types of lies.

Labels: DWI

The Dallas Sheriff has a mobile DWI command post. The Dallas Morning News is concerned that this DWI-mobile is not being used enough.

It seems that the DWI-mobile has been accused or racial profiling. The number of Hispanics arrested by the command center exceeds their demographic representation. This may have something to do with the fact that the DWI-Mobile was placed outside of bars that cater to Hispanics.

A former MADD director doesn't want silly racial profiling concerns to stop the glorious work of arresting drivers who drink.

Betty Ramirez Swinners, the former national diversity manager for Mothers Against Drunk Driving who developed the group's Pasa Las Llaves (Pass the Keys) campaign, said
"I think it's important for my community to be protected," she said. "What are we going to do, turn our heads while drunk drivers devastate Latino families?"

The idea behing the DWI-mobile is that you place a breath test machine room close to bars and it cuts down the time needed to arrest a suspect. Therefore you can arrest more suspects in less time.

Unfortunately, since the legal BAC is so low and we give officers discretion to arrest on their subjective opinion alone simply making more arrests does not decrease fatalities.

Labels: DWI, MADD

It would not be Labor Day without some MADD fear mongering. MADD is unveiling their latest holiday crackdown on social drinking. IWTS took the opportunity to break down the latest MADD press release.

From MADD...
Mothers Against Drunk Driving (MADD), the National Highway Traffic Safety Administration (NHTSA) and the Governors Highway Safety Association (GHSA) have launched a tough Labor Day law enforcement crackdown on drunk driving.

IWTS Says- With the new .08 BAC there is no crackdown on drunk driving. There is a crackdown on social drinkers who drive.

This nationwide enforcement campaign—Drunk Driving. Over the Limit. Under Arrest.—launched Aug. 14 and runs through Sept. 3, and involves tens of thousands of local and state law enforcement agencies making sure the nation’s roadways are free from drunk driving through intensive enforcement initiatives such as checkpoints and saturation patrols.

The highways will never be made free from drunk driving. Tragedy and bad choices are the cover charge for a free society. MADD knows that elimating drunk driving is impossible. However, it sounds better than Neo Prohibition.

In addition, Congress provided NHTSA $11 million for a national advertising campaign to intensify the impact of the enforcement drive. Cutting-edge television and radio ads geared toward male drivers ages 21-34—the demographic group at highest risk for causing fatal drunk driving crashes—are airing in both English and Spanish across the country.

True, except the cutting edge part. The ads have the same "The Cops are Coming to Get You" message that alcoholics ignore. These ads are effective in giving law enforcement the moral certainty required to arrest a driver who has had two drinks at dinner and then drives home.

The primary goal of the crackdown is to deter people from driving drunk as well as arrest as many drunk drivers as possible through proven enforcement techniques like sobriety checkpoints and saturation patrols.

The primary goal is Prohibition. Checkpoints have little to do with public safety. They are fishing expiditions for drugs and DWI. I would rather be free from unreasonable search and seizure than to have the false security of a checkpoint.

Vehicles are stopped in a specific sequence, such as every other vehicle or every fourth, fifth or sixth vehicle. Currently, there are 10 states that do not allow checkpoints and MADD aims to advocate for change in these states.

Probable cause is such an outdated idea. Freedom and liberty are getting in the way of good public safety measures like chekpoints. Stopping every 4th or 5th car sounds like a great way to fight crime. We should also raid every fourth or fifth house and look for drugs. Or arrest every fourth or fifth citizen and look for terrorists.

So, this Labor Day, have fun but remember to designate a sober driver or one will be designated for you by law enforcement officers hitting the streets in search of drunk drivers.

Sell your car, quit drinking, and throw away the Bill of Rights; but remember to have fun on Labor Day.

Labels: DWI, MADD

It is amazing how many times I hear that line from clients. They are pulled over. They admit to drinking 1-2 drinks. They perform field sobriety tests and then refuse the breath test. They are arrested and charged with DWI.

I mentioned earlier that DWI is an opinion crime. We give officers huge amounts of discretion to arrest based on their subjective opinion that you are intoxicated.

Intoxicated is the standard, not drunk. We call it Drunk Driving but that is just some good MADD marketing. DWI requires only intoxication.

Here is the Texas Penal Code definition of intoxicated

A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

A few things to consider. You can be "intoxicated" on any substance. ANY substance. Benadryl, lipitor, aspirin, vitamin B. Alcohol is not required. Illegal drugs are not required. Talk about discretion. The police can arrest you without proof you ingested any intoxicating substance.

Not having the normal use of physical or mental faculties. Officers always state that "In my opinion the driver had lost the normal use of his/her physical or mental faculties." They readily admit on the stand that this is their subjective opinion only.

Why? Because they have never seen the defendant before. They have no frame of reference for what is normal.

Labels: DWI

MADD has a vision for Texas drinking laws. On the MADD website you can learn about the "loopholes" in Texas drinking laws. MADD tells us that we will not be safe in the Lone Star State until we have Keg Registration, Anti Plea Bargaining Laws, Mandatory BAC testing of all DEAD drivers, Social Host Liability, lower BAC, and Sobriety Checkpoints.

MADD has lied to us before. They promised that lowering the BAC to .08 would save lives. It didn't. We have cops wasting time arresting .08 drivers. Drivers who rarely cause fatal accidents. That time is not being spent on .20 drivers, rapists, or finding missing sex offenders.

Keg Registration? What point doest that serve? MADD hates social drinking. No lives will be saved with keg registration. It has nothing to do with DWI.

Anti Plea Bargaining Laws. MADD want to outlaw the practice of changing DWI cases to "Obstructing a Highway" etc. That will lead to less cases being filed, more DWI's being dismissed, and more weak DWI's being tried in zero tolerance jurisdictions. If you want to pour cement into the criminal justice system an anti-plea bargaining law is a great start.

Testing the BAC of all dead drivers. Who does MADD think they are? If your loved one has a heart attack and dies in a car what business is that of MADD's? Disgusting.

Sobriety Checkpoints. A hallmark of the police state. Random, suspicion less searches of the citizenry. MADD loves sobriety checkpoints. Too bad studies show they are a waste of tax dollars.

Labels: DWI, MADD

Proposal For Decrimilaization

I am an advocate of ending the drug war. I do not spend a lot of time developing the perfect plan for day when Prohibiton ends. A blogger at To The Lighthouse has an interesting proposal. It's a good start and I could live with it.

DNA frees another innocent man

Star Telegram reports on Eugene Hinton who has been exonerated of 1983 rape by DNA evidence. Hinton pled guilty to a rape that he did not commit.

Why would Hinton plead guilty? Hinton was offered a 4 year sentnece for a guilty plea. Hinton was facing life if he went to trial.

Every tough on crime law, every mandatory sentence, every erosioin of privacy puts more innocent people in jail. With the threat of a possible life sentence many defendants will plead to a crime they did not commit.

I never prosecuted sexual assault cases. I can only imagine how tough these cases are to dismiss. However, if a prosecutor is offering 4 years on a rape case it is a sign that the case should be dismissed. Unfortunately, many prosecutors viewdismissals as losses and guilty pleas as victories.

Convicting the innocent undermines the credibility of the entire criminal justice system. I shudder to think how many more Eugene Hinton's are in jail.

I previously blogged about the concept of professional courtesy among law enforcement. I was prosecuting a speeding ticket against a citizen. My officer had pulled over two speeders at once.

One of the speeders was a police officer. That officer was let go with a warning. The other speeder was a citizen. The citizen got a ticket for speeding.

My officer told me that "Cops don't write cops tickets. It's called professional courtesy." I dismissed the case against the citizen.

Apparently professional courtesy does not stop at speeding tickets. Police officers in Washington state routinely escape DWI charges. SeattlePI.com has a great story on cops getting out of DWI charges in various ways. Evidence is lost, deadlines are missed, or charges are simply not filed.

If only all citizens were as lucky. Did I mention that I miss my badge?

Labels: DWI, Police

A State Representative in Florida was arrested for allegedly offering $20 for the right to perform a oral sex on another man. The Rep, Bob Allen, is another Republican with a strong anti-gay family values voting record. Instead of going to rehab Mr. Allen puts forth a defense of necessity. "This was a pretty stocky black guy, and there was nothing but other black guys around in the park," Allen, who is white, told police in a taped statement after his arrest. Allen said he feared he "was about to be a statistic" and would have said anything just to get away.

I've prosecuted prostitution cases, never defended one. It never occured to me that Necessity could be a defense.

Would this work in Texas? Here is our necessity law.

Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.

I get a lot of calls about traffic tickets. Most people just want to keep the ticket "off their record." This is usually accomplished through deferred adjudication. If you do not have a CDL (Commercial Driver's License) you are eligible for deferred.

Deferred Adjudication means that the case will be dismissed if you pay the fine and do not get a ticket for your probation period.

Every court has a different policy for deferred. Some require defensive driving or do not allow it for certain speeding offenses (eg 20mph over the limit). A local attorney can reduce the fines, get companion cases dismissed, and make an appearance for you.

Ticket Secret 1- Even if you get another ticket while on probation most courts don't know. I have not seen a court yet that could actually verify if you completed the probation or not without getting a citation. That is why some courts require you to file an affidavit promising you have been a good driver.

Ticket Secret 2- Trying a ticket that is more than a few months old is practically impossible for the State. I have yet to meet an officer who can honestly remember a ticket they wrote six months ago. They write so many tickets that the details run together. The first trial I lost as a prosecutor was a speeding ticket. The defense attorney was Pre Paid Legal. My cop testified he couldn't remember the stop or citation. Not Guilty.

Labels: Texas, Traffic Tickets

Labels: Dallas Police

I am still trying to become a registered member of the pushingback.com community.PB asks readers to submit their efforts to push back illegal drug use in their communities.

I sent PB.com my story-

My blog, www.iwasthestate.com, is dedicated to ending Prohibition. When Marijuana is legal and regulated and we allow legal supplies for other drugs illegal drug use will plummet. By fighting for freedom, liberty, and against Prohibition I hope to help my community solve the problem of illegal drugs.

Here is the response I got.

Dear Sir/Madam,
Thank you for contacting ONDCP. We appreciate you taking the time to share your comments with us.Your comments have been noted.The following resource and Web site provide information about marijuana and why it remains a controlled substance:
Denial of Marijuana Rescheduling
Speaking Out Against Drug Legalization
(IWTS Note- More links to anti pot literature were include, I removed them for brevity)
Please let us know if you have any questions.
Thank you,
Keri
Content Specialist ONDCP

I asked Keri about the PB policy on registering users and comments. I also asked who is eop.gov.

Sitemeter tells me that I have had a few visitors from Washington, DC. All from eop.gov. http://www.eop.gov/ does not exist. I have found that it may stand for "executive office of the president." That remains to be confirmed.

Labels: Pushing Back, War On Drugs

In Dallas we have a problem with "cheese", a mixture of heroin and Tylenol PM that is being sold to teenagers and children. Young adults are becoming addicts and some have lost their lives to cheese. Never one to miss an opportunity that involves drugs and children, the Drug Czar John Walters is visiting Dallas today. No word on if Mr. Walters will mix in some illegal campaigning while in Big D.

I heard Mr. Walters briefly on the radio today. He advocated tougher enforcement, more agents, and more money for education.

Let me offer a different proposal. Heroin is addictive and dangerous. Since heroin is addictive and dangerous we should not allow criminals to supply it. If we had a legitimate supply of opiates for addicts we could remove organized crime from the supply chain.

Education is great if it is honest. Education may have backfired on the anti drug movement. When you tell young adults that marijuana is dangerous they listen. Then they see first hand that the government has lied to them. It is reasonable when young adults then believe the government lies about all drugs.

The DEA has 11,000 agents. The federal budget for enforcement and education is over $12,000,000,000. Why haven't they caught these cheese dealers already? In trying to arrest all drug users and dealers we have created a situation where we can not arrest the dealers who prey on children.

No one supports children using heroin. The best way to prevent future cheese epidemics is to take the market back from criminals. If Prohibition did not prevent the cheese problem why should we believe that more Prohibition will solve it?

Labels: DEA, Federal Government, War On Drugs