Dallas Criminal Defense Lawyer Blog

I'm often asked by clients if a case is too old to go to court, or if there case is so old it must be dismissed. This is understandable. Many defendants are arrested and then wait months for their first court date. For example, the Kaufman DA (wisely) tests all drugs at the DPS drug lag before filing a case. There is a dope backlog at the DPS lab in Garland (onward Prohibition!). That means a wait of 3-6 months for drug cases to be filed after arrest.

What these clients are asking is if the Statute of Limitations has run in their case. (There are also speedy trial implications but that's beyond the scope of this post).

What is the Statute of Limitations?
The Statute of Limitations (SOL) is a recognition that some cases are too old to prosecute. SOL prevents the State from filing cases after a certain amount of time has passed. Remember that pot you smoked in college? As a society we have decided you should not have to answer for such conduct twenty years later. Here is a how COCA described SOL-

The statute of limitations is an act of grace for the benefit of potential defendants, a voluntary surrendering by the people of their right to prosecute. This act of grace serves several objectives: (1) it protects defendants from having to defend themselves against charges when the basic facts may—or may not—have become obscured by time; (2) it prevents prosecution of those who have been law-abiding for some years; and (3) it lessens the possibility of blackmail. Proctor v. State, 967 S.W.2d 840 (Tex.Cr.App. 1998).

If a case is not filed within this time limit then it can never be filed. If a case is filed outside the SOL then your defense lawyer must raise this issue in a pre trial Motion to Dismiss.

What is the Statute of Limitations for _____________?
It depends on what you charged with. You can find this information in the Code of Criminal Procedure Article 12.

No Statute of Limitations- Murder/manslaugther, sexual assault with DNA evidence, and leaving the scene of an accident that results in death

Ten Years- theft of any estate by an executor/administrator. Theft by a public servant of government property, Forgery. Injury to a child, elderly individual, or disabled individual punishable as a felony of the first degree under Section 22.04, Penal Code; Sexual assault, unless there is DNA evidence or if the victim is under 18. Arson;

Seven Years
misapplication of fiduciary property or property of a financial institution;securing execution of document by deception; or certain Tax Code violations

Five Years
Theft, burglary, robbery; kidnapping; injury to a child, elderly individual, or disabled individual that is not punishable as a felony of the first degree under Section 22.04, Penal Code; abandoning or endangering a child; or insurance fraud;

Ten Years From the 18th Birthday of the victim
Indecency with a child, Sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code;

Three Years
All other felonies not already listed. This includes felony drug offenses.

Two Years
All Misdemeanor offenses including DWI, marijuana possession, assault family violence etc.

When Does the Statute of Limitations start?
The day you (allegedly) commit the offense.

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Posted In: Texas Laws

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My wife and I drove from Ennis to Dallas today. Again, I was embarrassed by the proliferation of cops manning their radar guns on I-45..

Speed traps are among the lowest forms of law enforcement (TABC would also challenge for that title). I saw cops hiding under bridges, cops hiding on the access road, and cops pulling over fellow drivers (to meet their quota).

I have two problems with this speed trap nonsense. First, the speed limit on I-45 is 60 miles per hour. This is a six lane interstate highway without heavy traffic. The speed limit should be at least 70. After all, motorists want to get through Wilmer as quickly as possible. The 60 mph speed limit has no connection with safety, or with reality (I was going around sixty and being passed by almost every car).

Second, these speed traps are literally highway robbery. Instead of taxing their own citizens to fill the coffers cities like Wilmer spread the misery to out of town motorists. This is not criminal justice, it is traffic taxation.

It's time to raise the speed limit of I-45 and let these cops do something useful with their time.

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Some interesting stats from the Kaufman DA's office.

Total Pending Cases- Filed from 1/1/2004 – 9/26/2008 6,458
Total Disposed Cases- Filed from 1/1/2004 – 9/26/2008 11,871
Total Cases from 1/1/2004 – 9/26/2008 18,329

In the past 4 years 18,000 cases have been filed by the Kaufman DA. That seems like a lot for a county over just over 100,000 residents- over 100 cases a week. It didn't feel like that many cases when I prosecuted there. Of course with 10 prosecutors that is only about 10 cases to file per week per attorney. So, maybe I didn't realize how many cases were coming in.

Usually I would pull out the number of marijuana cases filed and rant against the waste of resources. But I don't have those numbers.

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I had court in Dallas this morning. Like many mornings with court I didn't eat breakfast at home. Luckily, Frank Crowley has a restaurant with breakfast served until 10:30.

As a public service, and to fill space, here is a quick breakfast review.

I ordered 2 eggs with 3 pieces of bacon, and a diet coke. Very low carb. The total was $4.32.

The first clue that this breakfast was not going to be top quality was when the eggs were scooped out of a warming tray. Now, I could have gotten eggs to order, but I didn't want to wait. So I went with scrambled. The eggs were cold and could have been powdered eggs.

For a meat option I chose bacon. Bacon is really hard to screw up. I only ask that it is burnt and/or crispy. The bacon was in a nice pile so you could choose which pieces you wanted. I asked for the crispiest pieces. My request was not honored. I received luke warm greasy bacon. I hate greasy bacon.

Here is a picture I took. Having seen enough Top Chef I can tell you that this dish was not "plated well". The food was merely lumped on the plate and not placed in a feng shui pattern with drizzles of sauce. However, this meal will be judged solely on culinary, not artistic quality.

Final Verdict- This meal was found to be guilty of impersonating a quality breakfast, and sentenced to 6 months State Jail.

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Posted In: Dallas Criminal Justice

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In Texas defendants have very little right to learn about the evidence against them. For example, Texas law does not require the State turn over the police/arrest reports to the defendant. Those facing criminal charges in Texas have less discovery rights than litigants in a car wreck or divorce. If you really wanted to crack down on wrongful convictions, discovery would be the first area to start. Defense attorneys must hope that the State will agree to voluntarily turn over such material.

Open/Closed File Polices
The good news is that most counties I work in have open file policies in which the defense attorney can get a copy of the State's file. Only one county has a strict closed file policy.

What is a closed file policy? Basically, the defendant/defense attorney are not given access to the evidence (police reports etc) in the State's possession. There are some exceptions- some counties will turn over certain materials (warrants/police videos) and not others.

Why would the State want to hide evidence from the defense?

I can't think of any legitimate reason for a secret evidence closed file system. In my experience such policies are motivated by animosity towards the defendants and defense bar. Seeking convictions rather than justice.

Beyond being inconvenient to the defense attorney, closed file policies greatly increase the odds of an innocent defendant pleading guilty. There is an inherent imbalance of bargaining power in plea bargains. Now add a lack of information to the mix and the odds that an innocent person takes a "great" plea bargain offer only increase. Closed file policies also waste court time with discovery/pre trial hearings that would not otherwise be necessary.

In sum, Texas has outdated and dangerous criminal discovery laws. If you are tired of seeing innocent Texans convicted ask your state representative to support greater discovery in Texas criminal cases. We can turn the tide on Texas' wrongful conviction epidemic only by allowing defendants access to the evidence against them.

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An attorney with the Wichita County Criminal Defense Lawyers Association has informed me that attorney client conversations are being recorded at the jail. The WCCDLA has pled with Sheriff Tom Callahan to end this practice to no avail.

My first job out of law school was with the Wichita County Public Defender. I remember three things about the Wichita County Jail.
1. It was disgusting.
2. There was no attorney client visitation area.To visit with a client attorneys must use the public visitation area. The parties are separated by glass and must talk through telephones. (I used to bring antibacterial wipes to wipe these phones down before use. Talking into these phones was like putting your ear up to a public toilet).
3. Inmates could smoke cigarettes (most jails ban the practice). The county made a killing selling roll your own cigarettes and the place smelled like a pool hall.

Recording Attorney Client Conversations
Before the attorney and client speak they are notified by a recorded message that all conversations are being recorded. The defense attorney has a choice; speak with his client and hope the Sheriff doesn't send the tape to the DA, or never speak with his client!

The right to counsel includes the right to confidential communication. Unfortunately, in Texas the practice of recording inmate conversations, including attorney/client, is widespread.

I have sent an open records request to confirm this practice. I'll post whatever they send. Until then, here is the contact information for the Wichita County Sheriff- let them know what you think about this policy.

Wichita County Sheriff
(940)766-8170
900 7th Street
Wichita Falls, TX 76301

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Ok. This isn't going to become a fulltime Sarah Palin blog. But this speaks as to what is wrong with government.

Someone hacked Sarah Palin's Yahoo email account. Here is a quote from wired.com

"This is a shocking invasion of the Governor's privacy and a violation of law," Rick Davis, McCain-Palin campaign manager said in a statement. "The matter has been turned over to the appropriate authorities and we hope that anyone in possession of these e-mails will destroy them. We will have no further comment."

FBI spokesman Brian Hale said, "The FBI is aware of the alleged hacking incident involving Alaska Governor Sarah Palin and is coordinating with the United States Secret Service on the matter."

President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.

The super-secretive NSA, which has generally been barred from domestic spying except in narrow circumstances involving foreign nationals, has monitored the e-mail, telephone calls and other communications of hundreds, and perhaps thousands, of people under the program, the New York Times disclosed last night.

When a private citizen spies on a politician's email we get an FBI investigation. When the government spies on private citizens we get...........

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The Kaufman County Bar met today. The luncheon was held at Maples Hall, a restored building from 1890 that you can rent for gatherings. It's an amazing structure and I highly recommend it. If you are in Kaufman, and need to meet for any reason, use Maples Hall.

Kaufman DWI Court
Kaufman is instituting a new DWI court program. What is DWI court? Basically, it's a new way for our criminal justice system to address addiction. The old way of addressing addiction- incarceration, has not proven effective at changing behavior. An alcoholic who leaves jail is still an alcoholic.

How do you get in DWI court?
This program is designed for felony DWI cases, as well as those on probation who are showing signs of addiction (failed UA's, drinking). Instead of being revoked and incarcerated these defendants will enter the DWI court program.

DWI court requires the probationers to meet with the judge every week to discuss their situation. Defendants will be responsible for attending AA/NA meetings, and getting medical treatment or counseling.

Any criminal defense lawyer will eventually have clients with addiction problems. I encourage my clients to solve these issues outside of the criminal justice system before accepting a plea bargain for probation. While I'm never exited when my clients are found guilty and put on probation I hope this new probation program will be a success.

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Posted In: DWI , Kaufman County

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Nary a day goes by without a phone call or email from an SEO company. SEO stands for search engine optimization. SEO companies promise that they can get your law firm site ranked in the top 5 for attorney google searches. To be fair, I use Justia which designs and markets my blog and website. They don't spam or splog to achieve results.

I'm often asked how I get readers, or how I got my blog to rank high on Google searches. I'm not afraid to share the secret. I've been blogging nearly every day for 18 months. I've had over 96,000 visitors and over 160,000 page views. I regularly add new material and my posts are linked on other prominent blogs. That's the big secret. The web is a meritocracy, if the public likes your content it rises to the top. If you don't produce relevant and popular content, you aren't going to be prominent.

How do SEO companies work? Basically by tricking Google with phony links.

Links tell Google that a website is important. SEO companies try to manipulate this process with fake links.

For example, this morning I had 5 new comments on my blog. I was exited to see that they all purported to be from a prominent local DWI firm. After all, it's good to be recognized and read by your peers. However, upon closer inspection these were SEO spam comments.

Here was one of the spam comments-

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.

That's an interesting and insightful thought. I should know. I wrote that. The spam comment bot just copies and pastes my own material in the comments, then links back to the law firm. All in a bid to trick Google.

I won't name the law firm because they have been more than gracious about this. The attorney contacted me personally and promised to cease this activity. I don't believe this law firm had any idea what their SEO company was doing.

I do fault the SEO companies. They are rarely straightforward with their clients about how they actually achieve their results. They are long on hype and short on details. They also do little service to the public by inflating their customer's sites over relevant content.

Whereas, I work everyday to reach an audience SEO companies seek to game the system. I can't really fault attorneys for hiring SEO firms. After all, the phone book is dead and the internet is the future. If Google puts your site on page 10 no one will know about it. There is a lot of money being invested in web pages and attorneys want a return on the investment.

However, you can't just buy relevance. Google is already adapting to the SEO link building game. Potential clients and the public are better served with timely relevant content than with SEO gimmicks.

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The federal propagandists who argue for marijuana prohibition claim that marijuana consumers are not a burden on the criminal justice system. The numbers tell a different story. Last year 827,721 persons were arrested for marijuana possession.

What The Cops Aren't Working On
If those numbers aren't embarrassing enough then consider the millions of police officer/prosecutor hours wasted, and the billions spent incarcerating, warehousing, and processing these defendants. I often blog about the opportunity costs of the drug war.

When the police are arresting pot smokers, they can not spend that time and energy on solving real crime. Arresting marijuana smokers is not just a stupid public policy- it is a dangerous policy that lets real crime go unsolved. Don't take my word for it. Recently, Scott Henson Grits For Breakfast recently broke down the FBI's crime stats for 2007.

From Mr. Henson-

I was also interested to learn that the vast majority of arrests are not for violent or property crimes: "In 2007, the FBI estimated that 14,209,365 arrests occurred nationwide for all offenses (except traffic violations), of which 597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses, a figure which seems surprisingly low to me.

Some of that can be explained by the drug war: "Law enforcement made more arrests for drug abuse violations (an estimated 1.8 million arrests, or 13.0 percent of the total number of arrests) than for any other offense." What's more, 42.1% of drug arrests were for pot possession.

What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?
To see how marijuana prohibitions makes you less safe, look at these crime clearance number for 2007.

Murder 60%
Rape- 40%
Robbery- 25%

When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.

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Blogging success can bring about trepidation. Case in point. My Sarah Palin post was linked on StumbleUpon.com. As a result, I have had over 20,000 readers in 3 days.

Many readers would be surprised to learn that my site doesn't usually average 6,000 readers a day. It's true. This influx of readership has left me wanting to write another blockbuster post. I've been waiting for inspiration for the perfect follow up post and..... nothing.

Forced writing is usually the worst. So, instead of delving right back into election commentary I'll just point out other great blog posts that deserve your attention.

Fort Worth Defense Lawyer Shawn Matlock Gets Robbed


From The Agitator- Why Cindy's McCain's Drug Addiction Matters

The Eternal Value of Privacy- A great essay from Wired.com. Sample quote

Too many wrongly characterize the debate as "security versus privacy." The real choice is liberty versus control. Tyranny, whether it arises under threat of foreign physical attack or under constant domestic authoritative scrutiny, is still tyranny. Liberty requires security without intrusion, security plus privacy. Widespread police surveillance is the very definition of a police state. And that's why we should champion privacy even when we have nothing to hide.

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GOP VP candidate Sarah Palin is an ex marijuana consumer. Mrs. Palin smoked her pot in Alaska, which her campaign points out was legal in Alaska at the time. This is a curious defense as John McCain is an advocate for the federal arrest and prosecution of medical marijuana patients and providers who operate legally under California law.

Like any good politician Mrs. Palin she now claims she didn't enjoy her marijuana, and that adults (besides her) should still be arrested, even though she wasn't.

"'I can't claim a Bill Clinton and say that I never inhaled.'" The paper quoted Palin as saying she opposed legalization of marijuana because of the "message" that would be sent to her children.

The arrest of 800,000 adults a year for cannabis does send a message- about the perpetual ignorance of government. A better message for children is that one day they will be adults, and they will have adult decisions to make. Mrs. Palin's marijuana stance seems to be typical political hypocrisy; convenient and intellectually dishonest.

Today, Alaska still has the country's best marijuana laws. According to NORML an adult can posses up to one ounce of pot at home, with no penalty. Of course, the logic behind Alaska's policy ends there as possession of over 4 ounces is a felony offense.

If legal marijuana is good enough for the GOP Vice Presidential candidate, why not for all Americans? After all, where would John McCain be if Mrs.Palin had been arrested and put through the drug court deferred probation nonsense so many other defendants face?

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The Court of Criminal Appeal's web site shows that an order deleting the special rule of attorney client privileges in criminal cases was signed on September 1st. (Click on the Order Amending Texas Rules of Evidence and Appellate Procedure Effective September 1, 2008 [pdf]).

This would be a surprise since in July COCA promised to table this deletion for at least 6 months. However, I can't tell if COCA really deleted this important protection, or merely forget to update their website. Only time will tell. I tried checking the Texas Register with no luck.

To recap- earlier this year COCA proposed to delete this rule that has protected Texans since 1856. Texas Rule of Evidence 503(b)(2)

(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.

Here is a great summary from Keith Hampton on why 503(b)(2) is still essential to our justice system.

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You are charged with DWI. You look good on the video, you refuse to blow, and you have no record. The State offers you a plea bargain in which they will dismiss the DWI if you plead guilty to Obstructing a Highway.

What is obstructing a highway?
OAH is a class B misdemeanor in Texas. It is the same level of offense as a DWI but lacks the $1,000+ driver's license tax upon conviction. It is also the most frequently pled to charge in a DWI case, other than DWI.

Is OAH really a crime?
Sure. Here is the Texas Penal Code
§ 42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY.
(a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
(1) obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or

So people actually plead guilty to OAH to escape a DWI charge?
Yes. However, DWI is NOT a lesser included offense for DWI. That means the State is not barred from charging you with DWI after you plead guilty to OAH. I have never seen a prosecutor who would actually go back on an OAH/DWI plea agreement and not dismiss a DWI charge. It could happen though.

OAH is easily the least arrested for, yet most convicted for offense in Texas. I've never seen an actual arrest for OAH. I've seen dozens of guilty pleas for OAH.

Can my DWI be changed to OAH?
It's a very case by case situation. Some DA's ban the practice. Some limit it to the first time DWI offenders. I've seen OAH happen on the day of trial or pre trial, or during a regular plea bargain discussion.

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MADD is having a meeting in Dallas. Needless to say they are having a fit over the idea that 18-20 shouldn't be criminally prosecuted for drinking.

Here is a great quote from MADD's president, Laura Dean-Mooney,

This is not about rights and responsibilities. It’s about public health and safety.

Laura exhibits the myopic zeal common among petty tyrants. She vows to keep her child from attending any school where officials endorse changing our nation's failed drinking age laws. To Dean-Mooney and her ilk ignorance and criminal prosecution are the only way to teach young adults how to use alcohol responsibly. This explains MADD's shameful practice of arguing for the prosecution of our nation's soldiers who dare to drink on base. Teetotallers have no use for rights, freedom or responsibility- all that matters is their definition of public safety.

The tides are turning, even MADD acknowledges that the public is learning to ignore their fraudulent statistics. From DMN-

Mr. Hurley said that one of MADD’s biggest challenges is presenting science to the public, because whatever data it offers is considered biased, Mr. Hurley said.

This isn't surprising. Most Americans drink before 21 in defiance of the confused zealots at MADD. It's time to move beyond their rhetoric and develop new laws that respect freedom, rights, and responsibilities.

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The police pull you over for speeding. The officer checks your criminal history and you have some old drug convictions. The officer thinks you look "nervous" and ask to search your car. You say no. The cop calls for the drug dog and 30 minutes later finds 200 grams of meth. Is that a legal search?

Such are the facts of The State of Texas, Appellant v. Gregory Daivd Pierce, Appellee. This is an unpublished opinion, but still a useful example of search and seizure. The trial court suppressed the search and all the evidence (drugs) founds. The State appealed and the Dallas Court of Appeals affirmed that the search was indeed illegal.

"But they found drugs!! A lot of drugs!"
I can hear the objections that we need to take drugs off the street. However, the 4th amendment applies regardless of what evidence is seized. Drug warriors shouldn't worry, we have set the bar pretty low for police searches. We only ask that cops have a reasonable suspicion of criminal activity.

Why was this search illegal?
When the police pull you over for speeding they are only allowed to detain you long enough to investigate speeding. They can check your license and insurance, run a warrant check, and ask some basic questions. But a stop for a traffic offense alone does not give the police the right to search your car.

For a further investigative detention the police need reasonable suspicion. In this case Officer Spano thought Mr. Pierce was acting "nervous". He knew Mr. Pierce had a record. In fact Mr. Pierce had a warrant out of California (but CA refused to extradite). However, those observations are not enough to detain a driver and bring out the drug dog.

From the Court of Appeals-
Here the facts and the reasonable inferences drawn therefrom are insufficient to support the conclusion that Pierce was engaged in or soon would engage in criminal activity; the suspicious conduct relied upon by Spano was as consistent with innocent activity as with criminal activity. See Carmouche, 10 S.W.3d at 328-39. Therefore, we reject the State's argument. We conclude Spano lacked reasonable suspicion to continue the detention beyond the time necessary to complete the initial purpose of the stop. See St. George v. State, 237 S.W.3d 720, 727 (Tex. Crim. App. 2007); Kothe, 152 S.W.3d at 63; see also Lambeth, 221 S.W.3d at 336. Thus, Pierce's continued detention beyond that time was unreasonable. See St. George, 237 S.W.3d at 727; Kothe, 152 S.W.3d at 63.

Never Consent To Police Searches
Gregory David Pierce made one important decision that probably kept him out of jail. He refused to let the police search. The officer asked for consent to search and Mr. Pierce rightly said no. This officer then threatened to bring the drug dog out, and did.

If Gregory had read my earlier piece on police searches, he would know that police often threaten drivers with the drug dog. That is NEVER a reason to let them search your car. If the police ask you to search, just say no.

Finally, this case is not over. The State could appeal to the Court of Criminal Appeals. If so, COCA could ignore these rulings to save this search. Such is the nature of appellate law. However, as of today two separate courts have ruled this search illegal.

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Cindy McCain is speaking tonite at the Republican Convention. Her husband John is the GOP presidential nominee. John is anadvocate for federal prosecution of medical marijuana patients.

Cindy is an ex addict who allegedly stole prescrip