Dallas Criminal Defense Lawyer Blog

Rep. Barney Frank proposed ending federal criminal penalties for possession of small amounts of marijuana. The Personal Use Act may not have a chance to pass this time, however the tides are turning against our failed drug war.

For proof the public is catching on read the comments to the CNN story. Despite years of hystrionics (smoking pot is just like Russian Roullette!) and tax payer funded garbage propaganda Americans are rejecting prohibition louder than ever before. There is simply no logical intelligent support for arresting Americans who use cannabis.

For some perspective closer to home check out these comments on legalization
- the Dallas Morning News
- the Ellis County Press.

Which sound represents your views? Do you still believe the federal government should arrest marijuana consumers? How about medical marijuana providers?

Reason.TV- The Charlie Lynch Tragedy
For supporters of federal prosecution watch this video by Drew Carey and Reason.TV.

Mr. Lynch runs a medical marijuana dispensary in California. Mr. Lynch has broken no state laws. He provides doctor prescribed medical marijuana. Still your federal government has decided to send Mr. Lynch to prison. The trial is on going and the judge is not allowing important jury nullification evidence, denying Mr. Lynch a fair trial.

One of the arguments used by the DEA et al, is that marijuana isn't medicine.

Maybe they should look at this US patent for medical marijuana. The holder of patent 663030507? Your federal government.

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Posted In: Marijuana

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Few things on the highway are as ubiquitous as a cop hiding from view, armed with a radar gun. As long as local governments have needed tax revenue, radar guns have been used to fine speeders.

How exactly does a radar gun work? Can this information help beat your ticket?
See for yourself. Here is a copy of the Radar Operations Manual from the Texas Department of Public Safety. Happy reading.

Table of Contents/ Chapter 1- Introduction

Chapter 2 Basic Principles of Radar Speed Measurement

Chapter 3 Legal Considerations

Chapter 4 Additional Considerations

Annexes (Graphs etc)

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Posted In: Open Records , Police , Texas Laws

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Texas Alcoholic Beverage Commission officers spend a lot of time harassing college students, busting up high school key parties, and arresting bar employees. However, TABC agents know how to have a good time. In fact, TABC agent routinely work undercover at Dallas strip clubs buying lap dances and beer with your tax dollars!

I filed an open records request last year to learn more about this undercover operation. To my surprise these strip clubs stings are not a TABC employee morale boosting program- this is considered law enforcement.

Nothing makes blogging material like a follow up story. So, I filed a follow up open records request to check in on the TABC strib club subsidy program.

I didn't receive as much information as my first request. For example, last time I received offense reports where the officers detailed the dangerous crimes they were investigated (improper lap dancing!). I may file a follow up open records request. Until then, here is what I learned.

A day with TABC and your tax dollars- 11/8/2007
Whevern TABC wants to use taxpayer money on lapdances, they are required to fill out a "purchase of evidence" report. I received some POE reports from November 8, 2007.

On 11/8/2007 undercover TABC agentsmanaged to infiltrate several Dallas area strip clubs. Armed with over $400 in taxpayer funds these officers bravely purchased 21 beers, and 9 lap dances. TABC is working hard to protect Dallasites from the lap dance menace; is this a good use of tax payer resources?

If one listed the dangers facing Dallasites today, where exactly would lap dances rank? Probably well below being wrongfully convicted and home invasion burglaries.

Dallas has one of the highest crime rates in the country. Real crime should take priority over inventing crime at strip clubs.

Here are the reports TABC sent.

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Posted In: Dallas Criminal Justice

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I get a few readers who are searching for "Dallas Court of Appeals". As a public service here is some basic information on the 5th District Court of Appeals.

Where is the website for the 5th District Court of Appeals in Dallas?
Here is the website. This site was recognized as one of the best in 2000. Unfortunately, it really hasn't changed since. The site design has a Windows 95 flair. Function over form.

What Does A Texas Appellate Court Do?
When a trial court makes a decision, that decision can be reviewed by an appellate court. For example, a defense lawyer may object that certain evidence is hearsay and should be excluded. If the judge rule overrules the objection and the defendant is found guilty, the defendant can appeal that decisions. The appellate court will then decide if the trial court's decision was in error. (Trial court error's are usually not enough to overturn a conviction. Texas appellate courts often rules that mistakes by a trial judge are "harmless.")

What areas does the 5th District appellate court serve?
Appeals from Collin, Dallas, Kaufman, Rockwall and Grayson county are all heard by the 5th District Court of Appeals.

Here is a map showing the jurisdiction for all Texas appellate courts.

I thought the 5th Circuit Court of Appeals was in New Orleans?
It is. However, that is the federal court of appeals. Dallas is the seat of the 5th District Court of Appeals.

Isn't there more information on criminal appeals at RobertGuest.com?
Great question. For information on appealing a criminal case, here is my appellate page from robertguest.com.

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Posted In: Dallas Criminal Justice

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Is an impartial judiciary important for criminal defendants? Even if the defendant is charged with DWI?

DWI enforcement has already destroyed many Constitutional Protections for DWI suspects. The 4th, 5th, and 6th amendments were long ago sacrificed to ensure efficient DWI convictions. Unfortunately MADDness and DWI hysteria are now threatening to destroy the impartial judiciary.

National Center for State Courts
The excellent DUIblog by Lawrenece Taylor recently exposed the judicial DWI training offered by the National Center for State Courts. NCSC teaches judges to be advocates for DWI convictions, going so far as to suggest judges meet with police and prosecutors to help them convict. If that was any case besides DWI, I would be shocked. Here is the NCSC, in their own words.

"What is the role of the courts in DUI Cases?"

In DWI cases, courts can have a much broader role than in many other types of cases. Through its interaction with law enforcement, prosecutors, defense attorneys, defendants, the public, and the press, the court establishes a tone toward DWI cases in the community. This is evident when the court addresses a defendant at sentencing to stress the severity of a DWI offense, invites school groups to attend DWI trials or dockets, or explains to law enforcement procedural shortcomings following unsuccessfully prosecuted cases. Judges, through their roles on the bench and in their personal lives, are leaders in the community and the attitudes they express are critical to shape public attitude toward DWI prevention and enforcement.

Training Texas Judges To Prosecute DWI
Naturally I wondered if similar DWI training was offered to Texas Judges. A quick Google search led me to the Texas Center for the Judiciary (TCJ). What is the TCJ? From their website-

The Texas Center for the Judiciary is the primary provider of specialized judicial education and training opportunities for Texas appellate, district, and county court at law judges.

What DWI training does the primary provider of Texas judicial education offer? Here is the DWI course list from the TCJ website-

Development and Field Test of Psychophysical Tests for DWI Arrest Source- Government |
Validation of the Standardized field Sobriety Test Battery at BACs Below 0.10 Percent Source- Government
A Florida Validation Study of the Standardized Field Sobriety Test (SFST) Battery Source- Government
The ABCs of DREs - Georgia Traffic Prosecutor Source- Prosecution
Horizontal Gaze Nystagmus: The Science and the Law Source- Prosecution
Psychophysical Tests for DWI Arrest Source- Government
The Detection of DWI Motorcyclists Source- Government

Notice anything? All these courses are authored by Prosecutors, or the Government! This is the same training we give the police and prosecutors. Judges with this type of DWI training would not be aware of, inter alia, the statistical fraud behind field sobriety testing.

Fortunately, Texas Judges are free to attend any training they choose. I have seen many judges at TCDLA seminars. The question then becomes- how many judges are trained only to prosecute DWI?

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Posted In: DWI

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The debate on the CP raid is evolving. My original post generated some good discussion on liberties, lifestyles, and law enforcement. Thanks to all for reading and posting.

One justification for this raid that hasn't been discussed is the nanny state view. The idea that adults need police protection from themselves. A great summary of this view if offered by Duncanville Police Detective Dan Hunt. Here is a quote from DMN-

In a city news release issued Wednesday, police Detective Dan Hunt said the Cherry Pit's owners are endangering and exploiting patrons.

"Individuals that elect to participate in the swingers' lifestyle behind closed doors should not be charged to do so, and they should not be exposed to disease, fire hazards, or any other dangerous hazardous environment. They [the owners] are taking advantage of swingers while claiming to be champions for their cause."

We sent the police into a private house at night to ensure a proper swinging environment? Really? I am curious as to Detective Hunt's expertise on how to conduct a swinger party. Is there police training on swinger etiquette?

I do appreciate arguments against running a business in a residential area. I wouldn't want any business next door to my house, whether it be a sexually oriented business or a Starbucks.

However, I still believe the proper venue for code enforcement, nuisance claims etc is civil court. A simple injunction or restraining order could address the city's concerns and give both parties an equal opportunity to litigate their claims.

Sending the police into a private residence at night is simply too dangerous a measure to protect adults from themselves.

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Posted In: Dallas Criminal Justice

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I had a pre trial hearing today regarding the broken Intoxilyzer machine in Kaufman. In Texas, technical supervisors are employed by DPS to maintain and verify these machines.

I was looking to suppress the evidence from a machine that had proven to be faulty and was taken out of service. We had a spirited hearing for 90 minutes, and my suppression motion was denied.

However, there was some interesting testimony on the I-5000. As a public service, here is some information on the Intoxilyzer 5000 (I-5000) and Technical Supervisors (TS).

1. Technical Supervisors have no repair on maintenance manual for the Intoxilyzer. If an I-5000 breaks a TS can only replace parts. If that doesn't work, they send it to Austin.

2. Technical supervisors only know an Intoxilyzer is broken if and when the Intoxilyzer tells the TS that it is broken.

To see if an I-5000 is working correctly a TS will ask the I-5000 to perform a self check. If the self check comes back ok, the machine is verified as accurate.

Wait a minute? If a machine is broken or malfunctioning, it may not run a self check correctly?

That's right. If this was a case other than DWI that would be a problem. However, we let all kinds of phony evidence in on DWI cases.

If an I-5000 does not self report that it is broken, no one knows. Not the TS, the prosecutor, defendant, defense lawyer, or jurors. TSs do not have any way to independently verify that an I-5000 is working properly.

3. TSs can not tell if the self check software is malfunctioning. TSs do not know how the software works.

Actually, it's worse than that. TSs don't know how ANY of the I-5000 software works. What formula does the software use to calculate BAC from photons? Ask the company.

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Posted In: DWI , Kaufman County

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The Kaufman courthouse has been evacuated. Allegedly, someone called in a bomb threat.

Texas law makes it illegal to call in a fake bomb threat. Here is the law. The question is... is today's bomb threat fake? I really hope so. And, is a courthouse a "public service". If so, this is a State Jail Felony. If not, this is a misdemeanor.

§ 42.06. FALSE ALARM OR REPORT.
(a) A person commits an offense if he knowingly initiates, communicates or circulates a
report of a present, past, or future bombing, fire, offense, or
other emergency that he knows is false or baseless and that would
ordinarily:
(1) cause action by an official or volunteer agency organized to deal with emergencies;
(2) place a person in fear of imminent serious bodily injury; or
(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.
(b) An offense under this section is a Class A misdemeanor unless the false report is of an emergency involving a public primary or secondary school, public communications, public
transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony

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Late Saturday night the Duncanville Police raided the "cherry pit", a private residence that also hosts swinger parties. According to DMN the police stormed in guns drawn (insert joke here). From DMN

Duncanville police executed a search warrant at the club, the Cherry Pit, which has been the subject of a Duncanville ordinance that bans sex clubs.

“They had guns drawn when they busted down the door,” said Ed Klein, the Cherry Pit’s attorney. “You’d have thought this was some kind of meth lab.”

What "crime" did this raid uncover? The police issued 10 tickets for operating a sex club. That's it. Class C misdemeanors. We usually don't call out SWAT teams to raid the homes of code violators; and for good reason. It's dangerous to raid a private residence at night.

Besides being dangerous, this raid is a poor use of resources. Here is the crime report from the Duncanville police web site. These crimes all occurred during the 48 hours before the raid on the Cherry Pit.
600N MAIN ST ALARM BUSINESS
1900 BLUERIDGE DR CRIMINAL MISCHIEF REPORT
200 N MAIN ST BURGLARY REPORT
1500 S CLARK RD ALARM ROBBERY HOLD UP
900 RED BUD DR BURGLARY REPORT
600 E CAMP WISDOM ALARM ROBBERY HOLD UP
1400W DANIELDALE THEFT REPORT
300 VAN ROWE AVE DISTURBANCE MAJOR
900 CLINT SMITH HARASSMENT REPORT
700 HUSTEAD ST BURGLARY REPORT
200 JELLISON BLVD BURGLARY OF VEH REPORT
600 W WHEATLAND THEFT IN PROGRESS
400 N CEDAR RIDGE THEFT REPORT

I would hope these crimes would take priority over code violations.

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Posted In: Dallas Criminal Justice

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This is a piece I wrote for the Ellis County Press on plea bargains.

Joe Goodguy is charged with aggravated assault with a deadly weapon, a second degree felony. The criminal case against Joe has problems. The "victim," Bob Badguy, is a felon who was high on crack during the offense. Joe is a decorated elementary school teacher with a clean record. Finally, the prosecutor has a murder trial next week and 100 other serious felony cases to work on.

The prosecutor offers a plea bargain. If Joe will plead guilty the prosecutor will reduce the charge to a misdemeanor and put Joe on probation. Joe speaks with his defense lawyer and accepts the plea bargain. Plea bargaining is the process in which the state and defendant reach an agreement on punishment in exchange for the defendant’s guilty plea.Plea bargains are reality in every court in Texas. In my experience, more than 90 percent of criminal cases are resolved via plea bargain.

Why are plea bargains so popular? First, because prosecutors have a lot of cases to move.
Blame the war on drugs for this one. The sheer volume of criminal cases (especially felony drug cases) means it would be impossible to have a trial in every case, or even prepare every case for trial. Dallas County has more than 24,000 felony cases pending. Those cases cannot all be tried.

Second, many cases have problems. As a defense attorney I often raise perceived shortcomings in a case to the prosecutor. Instead of dismissal most prosecutors will extend a better plea offer. In our example, Joe escaped a serious felony charge (and jail time) and received misdemeanor probation.

Reduced charges, less probation/jail time, dismissal of companion cases etc, are all options when plea bargaining.

Finally plea bargains offer certainty and finality. Jury trials are the best way to avoid wrongful convictions. However, jury trials carry an inherent unpredictability. Plea bargaining allows a defendant to control the outcome.

Fatigue is also a factor. Fighting the state can wear down many defendants. Attorney fees, numerous court appearances, missed work days and the stress of being a criminal defendant can make pleading guilty seem like a relief.

While plea bargains are voluntary (no defendant has to accept any plea offer), the state has a clear advantage in bargaining power. The state has multiple attorneys, investigators and a limitless supply of time and funds for any one case. Defendants can not always afford to pay the attorney or expert fees needed to fight the state.

Texas law also works against defendants.

Prosecutors have unlimited power to decide if a set of facts is a misdemeanor or a serious felony. Discovery in Texas is very limited so defendants can not access all the evidence against them. Texas law also prevents some defendants from making bail.

Put a defendant in jail, offer her freedom for a guilty plea and you will get a lot of guilty pleas.

Which leads me to my final point on plea bargain. Plea bargains carry a great potential to convict the innocent. Remember our first example? Let’s switch the defendant and victim.

Bob Badguy is the defendant charge with aggravated assault against Joe Goodguy. Now pretend Bob Badguy is 100 percent innocent, Joe made the whole thing up. The prosecutor offers 10 years felony probation. Bob doesn’t want to risk a lengthy jail sentence and pleads guilty.

Most people would say they would never plead guilty to a crime they didn’t commit. However, most people are not facing decades in prison.

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I'm off to Austin to speak at Netroots Nation. I'm in the Open Records Laws For Bloggers roundtable with some other great speakers.

Having attended too many CLE conference I reflexively produced a handout for the audience.

Here is the official Robert Guest guide to Texas Open Records Law For Bloggers

If you don't want to read those two pages. Here is the three sentence version.
1. Open Records Laws Are Confusing.
2. There is no risk in not knowing the law and asking for records.
3. Start asking for records, learn the law later.

I encourage every one to file Open Records requests. You can email, fax, or mail in a request to any government entity in Texas. If you get denied, you lose nothing! If the government tells you the request costs $1,204.23, you can cancel the request. There is no downside to asking, and it makes great blog material.

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Posted In: Open Records

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Besides being inaccurate, Intoxilyzer machines break down frequently.

Last year Kaufman County's DWI breath test machine was taken out of service. Here is what happened.

Reference Sample
Breath test machines are never calibrated on humans. By that, I mean that you don't have a human take a breath then a blood test to see if the machine is accurrate. Instead we rely on reference sample solutions. These solutions are designed for the machine to report a 08 bac.

Horseshoes, Hand Grenades, and Breath Test Machines
In this case the machine was given a reference sample to analyze. What should the machine score a .08 sample to be verified as fit for service? After all, we are convicting Texans with this machine. How accurate should this state's witness have to be?

If you guessed .08 you'd be wrong. Reading from .073 to .087 are acceptable. Good enough for government work.

This particular machine broke down on 1/9/07. What happened to the DWI defendants from the days and weeks before? Did they receive a letter that the machine was broken? Cases dismissed maybe?

Nope. Unless they subpoenad these records, or filed an open records request, these defendants would have never known they blew into a broken machine.

Some would consider material of a broken inaccurate breath test machine to be Brady material. However, DPS decided not to tell anyone about this broken machine.

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Posted In: DWI , Kaufman County , Open Records

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DMN reports that a Collin County Sheriff Deputy, Robert Benavidez, has been charged with abuse of official capacity. Allegedly, Mr. Benavidez has been working for a Mexican Drug Cartel, the Zetas. Let's look at this story from a two angles.

Prohibition=Corruption
Only 3 entities can supply drugs to the American drug consumer- the free market, the government, and organized crime. We have chosen organized crime. Prohibition gives Mexican drug cartels multi billion dollar monopoly. Drug cartels use these profits to, inter alia, corrupt law enforcement so they can sell more drugs.

If you think this is an isolated case, check out StopTheDrugWar.org
They have a weekly list of corrupt cop stories.

Can I Search Your Car?
I wrote a post last week on automobile consent searches. A few commenters noted that they were happy to let the police search because they weren't criminals. They would have had no problem with Officer Benavidez searching their car.

Most cops are not on the drug cartel payroll. However, the ones that are don't tell you. The freedoms we have given up to fight DWI/drugs are the freedoms we need to protect against criminal governments actors.

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Posted In: War on Drugs

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An anonymous commenter posted this reaction to my interview with Dr. Greg Kane, an expert witness.

Wow!! Amazing!! A man who wants money from defense lawyers states that nothing LE does is correct?? What are the odds of that?

Dr. Kane detailed the statistical manipulation used to legitimize field sobriety testing. Dr. Kane is available for hire by any attorney, State or defense.

In my experience, jurors accept State expert witnesses as neutral and credible. The cynicism displayed in the comment about Dr. Kane, is missing.

The truth is that State experts are employees of the State, paid to testify for the State, trained to testify by the State, in a manner than benefits the State.

Take the DPS employees who certify and maintain the Intoxilyzer machine. These State "experts" are trained at government workshops. They are taught to ignore and disregard evidence that these machines are faulty. They will readily testify that if they didn't believe in the machine they would lose their job. They are not neutral scientists in a lab somewhere. They are law enforcement employees with a vested interest in the machine, if not the verdict.

I'm all for skeptical jurors challenging expert witnesses. However, we should hold the same standards to State experts. Experience has shown that they are easily and routinely corrupted.

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Louis Brandeis was a Supreme Court Justice from 1916 to 1939. He invented the Brandeis Brief, a collection of empirical data to help guide SCOTUS decisions. Justice Brandeis has many memorable quotes in his opinions. The current DWI hysteria that has led to blood draw warrants inspired me to choose this one.

Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

This quote is from a SCOTUS case regarding government wiretaps. Brandeis dissented a decision that found telephone wiretaps "reasonable" under the 4th Amendment. For more quotes from LB click here.

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Thanks to all the readers who emailed me this story. I haven't had much time to blog, but this is an important development.

Here are the details. A Tarrant County judge threw out blood drawn by the Dalworthington Police in a 2005 DWI case. Too cheap or impatient to use real medical personel, the Dalworthinton Police decided that they should remove blood from DWI suspects.

A judge threw out the blood evidence in a pre trial hearing. Appeals are certain.
Finally, a victory over the DWI vampire horde.

Why did the judge rule against the government's forced blood warrant?

Because they violate the Texas Constitution? No.
Because they violate section 724.013 of the Transportation Code? Nope.

Instead, because police drawn blood violates section 724.107 of the Transportation Code.

§ 724.017. BLOOD SPECIMEN. (a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.

These cops had some EMT training. However, the law states that EMTs aren't qualified.

Police should not be drawing blood. First, they have a vested interest in convicting the defendant, not attending to medical needs. Second, if the cop actually kills or injures someone they have near complete immunity. Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?

Ok. So the last one is not likely (yet). However, we don't want police playing nurse anymore than we want all nurse driving the SWAT tank.

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