Dallas Criminal Defense Lawyer Blog

This economy sucks for everyone, defense lawyers included. I'm not expecting much public sympathy for our industry. We don't have enough political clout for a bailout. Would I trade my libertarian idealism for some free Obama "stimulus" money? Don't ask.

Criminal defense is a somewhat recession proof industry. When the economy retracts, the police continue policing, and criminals keep criminaling (I'm going to copyright that verb). Even as GDP goes down, arrests and prosecution continue on their perpetual upward trend (Onward Prohibition!)

The lawyers I talk to are hurting. Current clients aren't paying on time, potential clients can't pay at all. Let me dust of my economist hat and look into this market.

Pro Bono Doesn't Pay Well
Clients who a year ago could pay for private defense, now can not. Even DWI defendants, who tend to be the most affluent of all state defendants in Texas, are having a hard time paying for services. Lawyers can lower fees to a point. However, we have bills, taxes, insurance, families, mortgages that won't take less even if our revenue is down.

Finally, there is a floor at which a quality legal defense can be provided. I've seen Greensheet ads for $200 misdemeanor defense. I can't imagine what kind of "defense" that buys.

The criminal defense market is more akin to health care than say airline travel. We a heavily subsidized public component (court appointments), and a healthy private market for counsel.
If consumers lack funds they still have the right to counsel.

I have no statistical data (who can afford open records these days?) on the number of appointments. Anecdotal evidence and my experience in court indicates that more defendants are getting appointed counsel.

I want to ask the judge for a lawyer
Many defendants show up in court wanting a free lawyer. Most courts require filing out a pauper's oath (an antiquated way to say "promise that you are broke") to prove indigency.

Indigency is a vague concept with a different meaning in each court. Some judges grant counsel to most who ask, some decline counsel if you have made bail, some make you pay attorney's fees monthly to the court (usually between $50-$100). Texas judges have wide discretion in this area. The mere existence of this recession may make judges more sympathetic to indigency claims and more apt to appoint counsel.

I take court appointments only in Kaufman County. Despite the recession, I have not seen a large increase in appointed cases. My inner economist tells me that as the economy has soured more lawyers have signed up to take appointments.

Public Defending
This recession may accelerate the growth of public defenders offices in Texas. Kaufman and Dallas County both have public defenders. Ellis, Collin, Denton, Tarrant, Johnson, Hunt, Henderson, Van Zandt and most other Texas counties don't.

A rise is indigent defendants will increase costs to local government. It's a tautology, but indigent defendants don't have any money. They can't pay the fines, court costs, and/or attorney's fees for their case. The financial burden will eventually fall on the taxpayer.

Taxpayers hate paying for court appointed counsel, especially during a recession. If local governments are under pressure to "do something" about indigent defense costs it may increase the pressure to socialize indigent defense.

Topic for a future post- Why cost containment for indigent defense is impossible without trampling the rights of defendants. Paying appointed lawyers by the hour vs. flat fees vs. public defender.

Thanks to the War on Drugs, a "tough on crime" lege, and pro conviction appellate courts Texas now has over 400,000 probationers, 25% more per capita than the average state. These probationers all have one thing in common- they don't want to be on probation. Luckily, probationers in Texas can petition the court for early termination of community supervision.

What cases are eligible for early termination?
All offenses are eligible except Penal Code Sections 49.04-49.08, Sex Offender offenses, and 3g offeneses.

49.04 -49.08 are intoxication offenses; driving while intoxicated, flying while intoxicated, assembling or operating an amusement ride while intoxicated (really, look it up).

Sex offender offenses are self explanatory. 3g offenses are really bad stuff, and some drug cases- Murder, capital murder, indecency with a child, agg kidnapping, agg sex assault, agg robbery, school zone drug offenses, or an offense in which you used a deadly weapon.

Find out if you are eligible for early release before taking a plea offer.

Does anyone else find it outrageous that we put DWI defendants in the same boat as sex offenders? MADD's DWI hysteria lobbying again proves to be more effective than the DWI defendant lobby. Moving on.

Ok, so who is eligible? Some drug cases, most misdemeanor cases besides DWI, most non violent theft cases.

When can I apply for early termination?
After you serve 1/3 of your community service time, or 2 years, whichever comes first.

Will the judge grant my motion?
It depends. In my experience the most important factors for early release are
1. How long you have been on probation. The longer the better.
2. Your probation performance. Pass your pee tests, report, and don't get arrested!
3. $$$$$. The government needs your fines, fees, and court costs. Paying those will help your case.
4. Your PO's (probation officer's) recommendation. This is the most important. If your PO will sign off on early termination often the DA will agree, and if the DA agrees, then the judge is more likely to grant the motion.
5. Your overall criminal record. If you have been to the pen a few times, that's not good.

Unfortunately, many DA plea recs also assume you will get off early. Therefore, you may get a 7 year probation plea offer because the DA assumes you will be off in 2 years anyway. The existence of the early release statute has an inflationary effect on plea offers.

Remember, you are not guaranteed early release. Don't sign up for 10 years probation expecting to get off in 2.

Work with your PO
Once you are on probation let your PO know that you want to get off early and make that your goal. Ask your PO what it would take to win his/her recommendation for early termination and follow through.

It's only a matter of time until every public space in Texas has a O Cristo Redentor. Such is the holding of our SCOTUS case of the day Pleasant Grove City vs. Summum. This case has absolutely nothing to do with criminal law. That being said....

Facts- Pleasant Grove City has a public park. A private group donated a Ten Commandments monument to PGC. PGC displays the monument at the park. (I can only assume idol worship and donkey coveting are major problems in PGC).

Summum is a religious organization that wanted a monument dedicated to the “the Seven Aphorisms of SUMMUM" displayed in the same park. PGC says no way. Summum sues because the city is discriminating against their message.

Holding- The government can choose to display whatever monuments it wants. Monuments in public parks are "government speech" which can't violate the first amendment.

One problem with this holding is that government at all levels control millions of acres of land (with designs on millions more). SCOTUS has given government the power to discriminate and choose which viewpoints are heard in these public spaces. Hopefully, this ruling is limited to the donation of monuments to public spaces.

I'm not sure why government requires so many monuments to begin with. Our rulers are compensating for something.

The majority opinion is a must read if only to see Justice Alito quote John Lennon. Samuel borrows the lyrics to "Imagine" to support the idea that we can never know what anything means.

From the opinion-

Respondent (Summum) seems to think that a monument can convey only one “message”—which is, presumably, the message intended by the do-nor—and that, if a government entity that accepts a monument for placement on its property does not that message, then the government has not en-gaged in expressive conduct...
What, for example, is “the message” of the Greco-Romanmosaic of the word “Imagine” that was donated to New York City’s Central Park in memory of John Lennon?

Some observers may “imagine” the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously in-spired the mosaic and may “imagine” a world without religion, countries, possessions, greed, or hunger

The lyrics are as follows:
“Imagine there’s no heaven
It’s easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today...
Imagine there’s no countries
It isn’t hard to do Nothing to kill or die for And no religion too Imagine all the people Living life in peace...
You may say I’m a dreamer
But I’m not the only one I hope someday you’ll join usAnd the world will be as one
Imagine no possessions
I wonder if you can No need for greed or hunger
A brotherhood of man Imagine all the people
Sharing all the world...

Story time. Two weeks ago I went on a day trip to the wonderful Fossil Rim Wildlife park in Glen Rose. FR offers a family friendly safari. Like going to Africa without the shots or airfare.

Drivers trek through the Texas hill country tossing food pellets to zebras, giraffes, deer, and sinister ostriches. A giraffes sticking his head in your car should be on everyone's bucket list. I highly recommending FR for anyone who loves nature, and loves sitting in a car while enjoying nature (check, and check).

What should have been a pleasant day trip was interrupted by the Keene, Texas police department. I have never been to Keene, Texas but I speak with certainty when I say that this is a town full of ne'erdowells. Who else would set up a speed trap to steal money from unsuspecting drivers?

I was not driving. A relative who shall remain nameless (attorney/client privilege) guided our car south on 67. It was a uneventful trip until I noticed a police car make a wild u turn through the median and speed off in our direction.

I wondered what the emergency was? Was this officer going to stop a bank robbery or help a citizen in distress? My idyllic notions were shattered when I noticed the cop pulling up behind our car. The emergency was purely financial. Unlike business or individuals who get by on hard work and industry Keene, Texas needed to steal some money.... now.

To enhance their ability to tax drivers the zealots of Keene, Texas have lowered their speed limit to 50 mph on highway 67. The speed limit was a reasonable 65 or 60 on the rest of 67.

Mind you, this is a 4 lane divided highway. It doesn't go through any neighborhoods, there are no red lights or school zones. Finally, there was only one obscure speed limit sign to warn you of the upcoming robbery.

The officer walked up to the car and asked the ubiquitous "is there a reason you are driving so fast?" The driver was polite and handed the required insurance and DL. The officer dutifully checked the license for warrants and came back armed with a citation.

Then Keene's finest went from zealous bureaucrat to philosopher and announced "those speed limit signs are there for your benefit."

"Really?" I thought. You, Mr. Cop, get a badge, a gun, a car, and a nice paycheck to harass drivers for the sole purpose of raising money for the local government and the speed limit is for our benefit. Surely you jest. Self awareness is in short supply at the Keene PD.

I know I am painting with broad strokes. The officer didn't say speed limit signs are "only" there for our benefit, or that he (cop) received no benefit. However, the insult was that this cop wanted a thank you from speed trap victims. It's bad enough that the fine is potentially over $150, they could have kept the smug paternalism.

The medical marijuana bill is making it's way through the Texas house. HB 164 needs your help to survive.

Medical marijuana is inevitable. The only question remaining is when a MM bill will pass? You may think it is too soon, and that this isn't the right group of politicians.

I disagree, above all, politicians want to be reelected. Make it your duty to let them know where you stand. Call, email, fax, or write your rep and tell them to support HB 164. Even if Rick Perry vetoes this bill the further HR 164 gets, the easier it will be to pass in the future.

I've seen the prosecution of MM patients firsthand. It is an abhorrent practice that degrades our justice system. We can work to change the system, or punt our obligation to future generations.

Finally, if you are a Texas MM patient who wants to be heard call 512-585-3846 to speak with Texas NORML.

Here is an email I received today from Texas NORML director Josh Schimberg.

Hey all you Texas NORML supporters!

We have an exciting update on HB 164, the medical marijuana bill currently working its way through the Texas Legislature! And, we have special requests for taking action on this issue.

On February 12, 2009, HB 164 was officially assigned to the Public Health Committee in the Texas House of Representatives. The most exciting part of this committee assignment is that the bill's author, Rep. Elliott Naishtat (Austin), has been assigned to be Vice Chair of the committee! Also, HB 164 has picked up a co-author, Rep. Lon Burnam (Ft. Worth).

Below is a list of the members of the Public Health Committee, with areas they represent and links to contact them. If you need any help composing a letter of correspondence to your representative, please do not hesitate to contact us...

Committee Members:

*IF YOU, OR SOMEONE YOU KNOW, LIVE IN ANY OF THESE REPRESENTATIVES' DISTRICTS, PLEASE CONTACT THEM AND RESPECTFULLY REQUEST THAT THEY SUPPORT, AND VOTE FOR, HB 164.*

* Rep. Garnet Coleman, Dist. 147 (SW Houston/Harris County)
* Rep. John E. Davis, Dist. 129 (S/SE Harris County/Pasadena)
* Rep. Veronica Gonzales, Dist. 41 (McAllen/Palmhurst)
* Rep. Chuck Hopson, Dist. 11 (Jacksonville/Crockett/Henderson/Carthage)
* Rep. Susan King, Dist. 71 (Abilene/Sweetwater)
* Rep. Jodie Laubenberg, Dist. 89 (Rockwall/Farmersville/Melissa)
* Rep. Jim McReynolds, Dist. 12 (Lufkin/Coldspring/Woodville)
* Rep. Vicki Truitt, Dist. 98 (Southlake/Ft. Worth/Grapevine)
* Rep. John Zerwas, Dist. 28 (Simonton/Hempstead/El Campo/Wharton)

Even if you do not live in one of these districts, you can still contact members of the Public Health Committee to ask for their support on this issue.

You can also contact your own representative to request a co-sponsor of the bill.

Also, it would be very helpful for everyone to contact their State Senator and request that a similar bill be introduced in the Senate...

Thank you for taking action on this bill!

Cannabem Liberemus!
Josh Schimberg
Director
Texas NORML
http://www.texasnorml.org
http://www.myspace.com/texasnorml

The Dallas Morning News' editorial board wants you to quit smoking. Rather than just persuade or educate the public about smoking dangers, DMN wants to use the blunt power of government to force smokers into hiding. Even worse, they want to subject every city and community to the same rules. If they should exist, smoking bans should be local. What works in El Paso may not work in Highland Park etc.

I don't smoke. I don't want to smell like smoke. I don't want you to smoke next to me. I still don't support a smoking ban. This isn't even morality policing, we are legislating taste.

Let's examine the inanity. From DMN-

Smokers complain that this bill tramples on their right to light up, which they think trumps non-smokers' right to eat, drink, socialize and breathe free of secondhand smoke. What smokers really demand is the right not to be inconvenienced. Sorry, but the time has come for you to step outside if you want to foul the air.

Positive rights are a favorite of nanny statists. Negative rights are a legitimate end of a limited government. Property rights are one example, the right to not have the government force you to ban smoking at your bar.

DMN wants to create a new right; the right to eat and drink wherever you want without anyone smoking around you. That's not a right, that's an entitlement. If you want to dine sans smoker you already have the right to choose establishments that outlaw smoking.

Nanny state demagoguery is never complete without acknowledging the idol of public health.

Secondhand smoke is both an annoyance and a serious public health threat, according to the 2006 surgeon general's report. Secondhand smoke kills an estimated 53,000 people a year. Numerous surveys indicate that most Texans support a statewide smoking ban.

First, second hand smoke health studies are not above reproach, or without dissenting opinions.

Second, by DMN's logic we should ban automobiles. Traffic fatalities average around 42,000 annually. I should have the "right " to not be hit by your car. Ergo, you shouldn't use a car in public. Don't like that example? Then why not ban drinking in public? Like smokers some drunks smell bad. Drinkers also cause accidents and injure others. If we continue banning things that have any effect on the "public health", pretty soon we live in a Nerf world without any meaningful choices to make. We will no longer be adults, but children with caring bureaucratic parents.

Finally, let's update the DMN editorial board morality scorecard-
Marijuana= Murder, arrest everyone
Gambling= More money for government, legalize
Smoking= Gross, must be outlawed

The first Kaufman bar meeting of 2009 was today. Bar president Tracy Booker and Secretary Keenya Greeling did great work planning the vent. Turnout was higher than usual with around two dozen lawyers crammed into the law library.

One of the goals for the Kaufman Bar is to have CLE at every meeting. If you are a CLE speaker and will drive to Kaufman (county east of Dallas) let me know.

Today's speaker was Ted Lyons. Ted is a civil trial attorney with a history of huge verdicts. Mr. Lyons offered his insight into successful trial litigation. Here is a breakdown.

Ted point 1-To successfully represent your client at trial you must understand him. It's not enough to know the facts of the case. You must spend enough time with the client to understand his thought process, pysche, biases, motivation, etc.

This can be a struggle for defense lawyers, especially with appoitned cases. The disparity between my appointed clients and myself is epic. It's not just an economic difference. I have a law/college/high school education, they don't. I am lucky enough to be free of serious mental/physical illness, they aren't. I grew up with two loving parents in the suburbs, they didn't. My parents didn't abuse me, use drugs, or spend time in prison etc.....

Also, the pace of criminal defense can make this a hard practice point. The less clients you have, the more you charge, the more time you can devote to understanding your client. This is an area I wish I had more time for.

Ted Point 2- Clients should approach the jury as a potential employer, and the trial as a job interview. Mr. Lyons talked about the presentation of your client. It's important for your client to look good for the jury.

Another area I don't spend enough energy on. I have a form letter telling my clients to dress appropriately and not wear hats or shorts. However, some of my clients don't own a suit and can't afford a nice trial outfit. Some of my clients are brought to court in chains (not in front of the jury though).

Finally, I'm not exactly a fashion guru. My wife dresses me (no shame in admitting that). That doesn't mean I shouldn't explore the role wardrobe plays in influencing a jury. Any studies on this?

Ted Point 3- Trial exhibits are important. Agreed. Ted is particularly fond of chronological time lines.

I agree completely that exhibits are vital to any case. Some jurors learn visually and you can help them understand your case by using power point, a chart, or even a dry erase board. Presenting evidence to a jury means adapting that information for the widest possible audience.

Ted Point 4-, Ted extolled the value of focus groups and mock juries. When Mark Cuban gets arrested for DWI, and hires me, then I will have my first client who can afford a focus group.

Until then, I stand on the shoulders of giants and keep up with juror research and psychology. That isn't as effective as a focus group for a particular geographic area, but it's cost effective.

This is an area local criminal defense bars could help their membership. Pooling funds to sponsor a focus group/mock jury with routine DWI issues for example. See how locals feel about field sobriety tests, refusals, and breath tests.

Mr. Lyons was a great speaker, his trial track record is testament to his methods. It was a pleasure to have him speak, and if you are injured, and need a case tried, call Ted.

Court of Criminal Appeals judge Sharon Keller has been described as "Texas' Judge Dread". A self described "pro prosecutor" judge who not only shown a reckless disregard for innocence claims, but infamously closed the courthouse denying a death penalty appeal for Michael Richards.

From the Star Telegram-

Fort Worth State Rep. Lon Burnam filed a resolution this afternoon calling for the impeachment of Texas Court of Criminal Appeals Presiding Judge Sharon Keller.

Keller sparked controversy and condemnation two years ago when she refused to keep the court open past 5 p.m. on Sept. 25 to allow for a last-minute appeal for condemned killer Michael Wayne Richard who was awaiting execution...

Burnam's resolution, house resolution 480, charges Keller, a Republican, with "neglect of duty" over the incident and charges her with operating with "willful disregard for human life."

The charges against Keller are serious, and an impeachment trial would be a proper venue to litigate those claims. Plus an impeachment trial would be great blog material. Would Sharon mind having only "pro impeachment" Senators at her hearing, or having her arguments denied because the clerk's office arbitrarily closed?

Let's end with a quote from Houston defense lawyer Mark Bennett.

The courthouse shouldn’t belong to one party or the other. Since taking the bench, Judge Keller has kept her promise to reserve the keys to the courthouse for the State. She has proven herself a master of results-oriented jurisprudence — ruling for the government not because the law requires it, but because she is prosecution-oriented. It’s time for her to go.

Further Reading-
Fort Worth's Shawn Matlock on HR 480
HR 480
Sharon Killer
Grits- Sharon Keller Should Quit and Go Home

The militarization of our police force is complete. Dallas Police are using a freakin' helicopter to find an orange painted streaker on Katy Trail.

A few questions-

1. How hard is it to catch someone who is a) naked and b) painted orange! Maybe if cops weren't so busy meeting their daily ticket quota they could spend more time patrolling Katy trail.

2. How much do you think this costs in fuel alone? What's next, using the chopper if kids are toilet papering a house? This was some weird exhibitionist stunt, not a terror attack. There should be evidence of some threat to public safety before we fire up the DPD copter.

Let's see DPD keeps a straight face explaining their overreaction.
Oh, wait, they already did.

Dallas police expressed concern over the incident. "This is very offensive and something that is not funny, not funny at all," Senior Cpl. Janice Crowther told KXAS-TV.

I have to disagree. This is high comedy. Maybe Sascha Cohen doing a bit on Katy trail. I'm worried Senior Cpl. Crowther can't find the humor in her occupation. Here is a clip just for her.

Dallas law enforcement is concerned about border/Phoenix levels of drug cartel violence coming to the Metroplex. I'm usually one to knock law enforcement fear mongering, especially when it comes to drugs. However, the rash of kidnappings in Phoenix shows that Mexican drug cartels will fight for turf in the US.

From DMN-

So far, the only thing that has kept the Gulf cartel from using its brazen tactics in Texas is a fear of attracting too much attention, said James Capra, special agent in charge of the Drug Enforcement Administration office in Dallas.

"The propensity for violence in dealing with these trafficking groups is huge," he said. "We hear daily about things like beheadings, heinous torture, that we are not used to seeing domestically. Are we going to start seeing that here? That's the fear."

Also of concern was the November discovery of the largest cache of drug cartel weaponry ever seized in Mexico – just south of the border. In Reynosa, across the river from McAllen and Pharr, Mexican authorities found 540 assault rifles, more than 500,000 rounds of ammunition, 14 cartridges of dynamite, 98 fragmentation grenades, 67 bullet-proof vests, seven .50-caliber sniper rifles and an anti-tank rocket.

I'm hoping the DMN editorial board reads this story. For too long they have engaged in knee jerk Prohibition apologetics, and a Pollyannish quest to shame each user into giving up drugs (how's that working?). I would implore DMN to consider a new approach.

Mexican drug cartels can only afford to wage a bloody turf war because our government has given them a multi billion dollar monopoly to fight with, and to fight over. It's time to quit blaming drug users for the problems caused by drug suppliers. Instead, we should accept that our government has chosen the wrong supplier.

Only three entities can provide the drugs Americans want- government, business, or organized crime. We've stuck with the third option for nearly 100 years now.Instead of admitting failure and rectifying a policy mistake, we have watched Mexico become a narco state.

Albert Einstein opined that insanity was "doing the same thing over and over again and expecting different results.”

You don't have to be Einstein to realize our government's drug war is a grand delusion perpetuated by histrionics, vested interests, and wanton hubris. If this is really the time for Change, let's start by changing suppliers.

Here is an email I received from TCDLA. For those who are not familiar with the Keith Gore debacle here is a quick recap.

Dear Member:

Next Thursday, February 19, 2009 at 1:30 pm, a hearing will be held in the 418th District Court of Collin County on issues involving Keith Gore, the lawyer whose office was illegally searched. The Court will be hearing the state’s motion to disqualify Mr. Gore, as well as Mr. Gore’s motion to disqualify the DA’s office. The hearing is expected to last through Friday the 20th.

If you are free either of those days and can attend the hearing, please do so. The search of Mr. Gore’s office and seizure of evidence is something that could happen to any one of us. Your support will be greatly appreciated by Mr. Gore and the Texas criminal defense bar.

Thank you!

Rick Hagen
TCDLA President

I would encourage anyone who can make it to come and support Keith. The right of your attorney to not have his office illegally searched would seem so fundamental as not require your attendance at a hearing. Unfortunately, we are now only bad trial court ruling/appellate decision away from making these searches just another "exception" to your rights.

Austin's police chief Art Acevedo, has a plan to expand DNA testing to everyone suspected of a crime. Current law restricts DNA testing to certain felony convictions.

Art's scheme would mean that the innocent arrested would have their genetic code on file in a government database for over eager bureaucrats and cops to pour over at will.

First, being arrested for a crime should not give rise to the forfeiture of one's genetic code. Innocent Texans are arrested every day.

Second, our Texas crime labs are plagued by incompetence and a bias towards helping the state convict. Our state struggles to honestly and accurately maintain relatively simple DWI breath machines. Adding a massive DNA database to an already broken system would only compound the problem.

Finally, the Supreme Court's Herring decision means that the state has no incentive to maintain a DNA database with any accuracy.

I couldn't find any actual bill filed related to this doltish idea. If a bill is filed, we must all speak out to prevent to stop this Orwellian disaster.

Here is the future if Art's vision becomes reality.

You get arrested for DWI. During the book in process you are required to submit a DNA sample. It's a weak case and you are found not guilty at trial.

Meanwhile, there is a unsolved murder with DNA evidence. A crime lab flunkie messes up the DNA samples. The lab tech wants to help the police convict someone so she covers up her mistakes. Her faulty lab tests names you as the killer.

A warrant is issued for your arrest. The police arrest you, and find a joint in your pocket. The DA knows the lab tech is incompetent and crooked, but the prosecutor doesn't inform your lawyer of this. After all, the prosecutor is immune from Brady violation lawsuits.

After a year in jail your defense lawyer finally gets a DNA retest and you are released. However, the state puts you on trial for that joint you had in your pocket, because in a post-Herring world database errors don't invalidate a warrant.

You are sentenced to the usual drug court probation nonsense with weekly NA classes. The stress of the situation leaves you unable to work or perform community service. So the judge throws you in jail for violating probation.

Further reading- Radley Balko on the epidemic of faulty science in criminal cases.

Today's case of the day is....

State of Texas vs. James Ray Deeds-
Facts- Balch Springs officer Palfreyman was working late one night when a motorist flagged the officer down. The motorist was concerned about a possible DWI driver in a red pickup.

What facts did the concerned citizen tell the officer to justify his DWI concern? Let's ask the officer-

I don't recall the exact statement, but led me to believe that, based on the driving patterns that he had witnessed, that he believed the driver of the pickup truck to be intoxicated.

Nothing. The officer can't remember and didn't bother to record anything. Who needs facts? This is DWI enforcement. Based on this rock solid investigation the officer spots a red pickup and immediately pulls the car over.

Problem- The red pickup had committed no traffic violation. The officer had no articulable facts or evidence that this driver was DWI. The defendant filed a motion to suppress the illegal arrest.

Holding- This is a DWI case so conviction affirmed. The court found plenty of "evidence" of DWI, enough to justify detaining this driver.

From the opinion-

The record shows that after receiving the informant's report, Palfreyman witnessed appellant “weave back and forth” within his traffic lane. That weaving “gave a small additional measure of corroboration” to the informant's report. See State v. Nelson, 228 S.W.3d 899, 904 (Tex. App.-Austin 2007, no pet.)...

Corroboration
How exactly do you corroborate a report that contains NO FACTS? Weaving in a lane is not illegal in Texas. You probably weaved in your lane on the way to work. Were you drunk? Should you have been pulled over if some random citizen told the police to arrest you?

Don't Drive After 11PM

Think weaving in a lane is a stretch? The court also rules that driving late at night can be used against you. From the opinion-

Finally, Palfreyman testified the likelihood of encountering an intoxicated driver on the roadway is generally highest between the hours of 11 p.m. and 3 a.m. The record shows the events at issue occurred at approximately 2 a.m

Statistical profiling is a poor substitute for real police work. It's a logical fallacy disguised as law enforcement.

If more drunk drivers are out late at night, that doesn't mean any individual late night driver is drunk. Why don't we just run credit scores to establish probable cause?

We've replaced the right to not be detained without cause, with the right to be arbitrarily stopped by law enforcement after 11pm. Another sacrifice of freedom at the idol of DWI enforcement. But who cares about DWI defendants?

The greatest Olympian of this decade is losing endorsement deals over cannabis use. I have a paltry ad budget, but I am willing to dedicate 100% of those funds to hiring Michael Phelps. Perhaps I could hire Michael to swim the Trinity with a Robert Guest.com speedo.

Michael, you are still an American hero. You have nothing to apologize for. Millions of Americans, including the current and two former Presidents, have partaken in the recreational use of cannabis.

I'm proud to defend cannabis consumers, and I would be proud to extend an endorsement deal to someone with firsthand knowledge of the illogical persecution they face. Shame on the bureaucratic fools who would exploit this situation for political gain. Shame on companies like Kelloggs who would abandon you. And shame on the asshat who sold your photo to the tabloids.

The continuing tragedy of cannabis prohibition can benefit from comedic commentary. On that note, here is a "really?" bit by Seth Meyers.

One of the many criticisms of the disastrous Herring opinion, is that SCOTUS missed a chance to promote accuracy and accountability in government databases. The result of SCOTUS misguided, illogical, and dangerous opinion in Herring is that innocent people will be arrested on recalled warrants, fake warrants, and other database errors.

After all there is inherent accuracy in government work. Why would the State improve database accuracy if their is no sanction for mistakes?

I saw a glimpse of the Herring future today. I was in misdemeanor court when a female defendant approached the bench crying. Apparently, this lady had written some bad checks. She had a deal with the DA that if she paid off the checks all charges would be dismissed.

From what I could gather, the defendant had paid her debts, but a warrant was issued by mistake. She was arrested and severely traumatized by the experience.

I didn't stick around to see the ending or verify this defendant's story. Regardless of the outcome of this defendant's case Herring guarantees that similar situations will play themselves out across the country.

If anything, law enforcement has an incentive to keep a faulty database. Drug enforcement benefits from the quantity of arrest warrants, not quality. Even a faulty warrant gives the police the chance to arrest a few more suspects, hoping for another meaningless dope bust.

Scene: Texas Senate sometime in the past

Senator Genius: The people in my district are scared about gang members.
Senator Einstein: Interesting. My constituents are concerned with the threat of dildo sales.
Senator Genius: Are you thinking what I'm thinking?
Senator Einstein: A ban on gang members selling sex toys! Brilliant!
Senator Genius: My only regret, is that we can only pass this law once.

I should have realized that by making obscene devices illegal, the black market in sex toys would flourish and criminal street gangs would fill the demand. Fortunately, Texans have long been protected from this menace.

This brings us to our Texas Law of the Day- Penal Code Section 71.02(a). Politically, this is the perfect Texas law. 71.02(a) combines the public's fear of gangs, with our state's Victorian sexual mores. Fear and chastity are the peanut butter and jelly of Texas legislation. It's political gold!

(a) A person commits an offense if... as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:.... (6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;

I am ready to declare 71.02 (a)(6) the most effective law of all time. I have never seen a single arrest or prosecution for this offense. The only street dealers for adult products are housewifes at "passion partys"; not Crips.

Forget the high toned debates over "deterrence". The minute this law was passed every gang banger in the Lone Star state grabbed a copy of the Penal Code and realized; trafficking in lascivious devices is wrong. Our Texas gang members have taken the moral high road when it comes to street commerce; drug dealing. We won!

DISD has a truancy epidemic. The district has so many truants that a special court is needed to help prosecute school children who won't show up for their free government education.

Truancy enforcement is a win/win for Dallas. The city gets the fines levied against parents, and schools get more funding when an extra body is in the classroom.

That bring us to the truancy court judge Douglas Dunn. Dunn is more of a fascist hall monitor than neutral arbiter. Here is an instant classic from DD.

From DMN-

The students aren't treated with kid gloves – two students were escorted from Judge Douglas Dunn's courtroom in handcuffs last week. Dunn, who presides in the central truancy court in the Frank Crowley Courts Building, recently told a student that if he didn't straighten up, he wouldn't have to worry about being disciplined by his mother – but rather by his "boyfriend in county jail." He also made the student tuck in his shirt and pull up his pants before approaching the bench.

Go to school or get raped by your "boyfriend in county jail." Disgusting. Judge Dunn sinks to a level of discourse below that of daytime TV judges. For shame.

I'm not a truancy court expert. I did preside over a truancy court in Texarkana a few times. No one was arrested in my court, no rapes were threatened. Somehow, we managed to get kids back to class.

If Judge Dunn really is incarcerating children (which should be impossible, truancy is a class C traffic ticket level offense) then these defendants should have a lawyer. Paying for defense lawyers would slow down the gravy train for the city. But if this is about justice then that shouldn't matter.

Judge Dunn seems to enjoy throwing out big fines to to the parents. Never mind that the fact that we are in a recession and most of these parents are broke to begin with. This is law enforcement for the sake of law enforcement. This isn't about education, it's intimidation.

Finally, another brilliant insight from judge Dunn..

He took a similar approach with another truant, with a record of criminal offenses. "You're not very good at this. You need to find another line of work."

Pot meet kettle.