Dallas Criminal Defense Lawyer Blog

"Will this be on my record?" is a common client concern. After all, in the information age employers, friends, enemies et al, all have access to your complete criminal history with only a few clicks of the mouse. Criminal cases can leave a permanent scar. You can spend a lifetime explaining that misdemeanor pot charge you got in your 20's. Ergo, it's important the before you plead guilty and accept that "great" plea offer, you understand the long term effects on your criminal history.

Unfortunately, the idea that a deferred case can be expunged is probably the most common erroneous legal advice given. (Disclaimer- class c/traffic tickets can be expunged after deferred). Many defendants plead guilty thinking, again erroneously, that since a deferred case is dismissed upon a succsefful completion of probation, and leaves no conviction, they should be entitled to an expunction.

Dallas County is seeking to end the confusion with a new written admonishment, which lays out the expunction/non disclsoure ramifications of a deferred plea. I OCR'ed the text so you don't to read the PDF.

It reads as follows-

COURT'S ADMONISHMENT ON RIGHT TO ORDER OF NONDISCLOSURE lf you have been placed on deferred adjudication community supervision and subsequently receive a discharge and dismissal, and you satisfy the requirements set forth below, you may petition the court for an order ofnondisclosure pursuant to Section 411.08I of the Texas Govemment Code, Except as provided below, you may petition the court regardless of whether you have been previously placed on deferred adjudication community supervision for another offense. After notice to the State and a hearing on whether you are entitled to file the petition and whether issuance ofthe order is in the best interest ofjustice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense for which you were placed on deferred adjudication, A criminal justice agency may disclose criminal history record information that is the subject ofthe order only to other criminal justice agencies, for criminal justice or regulatory licensing purposes, an agency or entity specifically listed in Section 41 1.081, or the person who is the subject ofthe order.

You may petition this court for an order ofnondisclosure on payment ofa $28 fee to the clerk ofthe court in addition to any other fees that generally apply to the filing ofa civil petition. The petition may be made only on or after: (I) the discharge and dismissal, ifthe offense for which you were placed on deferred adjudication was a misdemeanor other
than a misdemeanor described by number (2) below; _t (2) the second anniversary ofthe discharge and dismissal, if the offense for which you were placed on deferred adjudication was a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46, Penal Code; or
(3) the fifth anniversary of the discharge and dismissal, if the offense for which you were placed on deferred adjudication was a felony.
You are entitled to petition the court for nondisclosure only if during the period of the deferred adjudication community supervision for which the order ofnondisclosure is requested and during the applicable period described by number (I). (2), or (3) above, as appropriate, you were not convicted of or placed on deferred adjudication community supervision for, any offense other than an offense under the Transportation Code punishable by fine only. You arc not entitled to petition the court if you were placed on deferred adjudication community supervision for or have been previously convicted or placed on any other deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Penal Code Section 20.04 (Aggravated Kidnapping), regardless of whether the offense is a reportable conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;
(3) an offense under Penal Code Sections 19.02 (Murder), 19.03 (Capital Murder), 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual), 22,041 (Abandoning or Endangering a Child), or 25.07 (Violation of Court Order or Conditions ofBond in a Family Violence Case); or
(4) any other offense involving family violence, as defined by Family Code Section 71.004.

You are considered to have been placed on deferred adjudication community supervision if, regardless of the statutory authorization:

(1) you entered a plea ofguilty or nolo contendere;
(2) the judge deferred liirther proceedings witltout entering an adjudication of guilt and placed you under the supervision of the court or an officer under the supervision ofthe court; and
(3) at the end ofthe period of supervision thejudge dismissed the proceedings and discharged you.

Got that? If you want to plead guilty, and take deferred in Dallas you have to sign off that you understand exactly what you can, and can't do to keep this event from public view. While we are on the topic, deferred reform is an area that needs more attention. Too many Texans are held back by penny ante bullshit criminal cases. That pot case in your twenties shouldn't last a lifetime. I get a lot of inquiries for expunctions/non disclosures, and after I tell them they don't qualify I encourage them to contact their representative, and let them know how they feel about our state's inane expunction laws. To that end the Texans for Justice and Legal Reform are one organization working to fix the problem. Their website sucks, but it's a good place to start.

I get a lot of clients who have driver license issues. Most can't get beyond the DPS run around and walls of beuracratic nonsense and get one simple question answered- What do I need to do to get my license back?

Which is why this new link is so ecxiting. DPS has a new site so you can out the status of your DL, make payments, and work towards lifting that suspension.
.
https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

Skip the lines and the glacial inertia at your local DPS office, and let a computer do what most DPS employees can't. Actually help you get your license back.

I was attacked by a dog two days ago. Here's the short version. I was doing my usual walk to the park and back when a giant lab mix (let's call him Kujo) took two bites out me. I fell and twisted my knee, and went to the ER for treatment.

I got a tetanus shot and some hardcore antibiotics (dog's mouths are not clean places). I'm awaiting word on whether Kujo had rabies or not (probably not since it was someone's pet, not a stray). My friendly ER nurse informed me that the rabies vaccination isn't done through the stomach anymore, but it still hurts like hell and requires multiple doses and follow up treatment.

Of course whenever a dog bites an attorney the first question is "Are you going to sue?" I'll let my partner, Scott Gray, make that decision. I'm a criminal lawyer, so let's explore Texas Dog Bite Law from that angle.

I have never seen a prosecution for a dog attack, but dog owners should be aware the actions of man's best friends can create criminal liability for the owner if and when Fido attacks.

From the Health and Safety Code

Sec. 822.005. ATTACK BY DOG. (a) A person commits an offense if the person is the owner of a dog and the person:
(1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner's real property or in or on the owner's motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person; or
(2) knows the dog is a dangerous dog by learning in a manner described by Section 822.042(g) that the person is the owner of a dangerous dog, and the dangerous dog makes an unprovoked attack on another person that occurs at a location other than a secure enclosure in which the dog is restrained in accordance with Subchapter D and that causes serious bodily injury, as defined by Section 822.001, or death to the other person.
(b) An offense under this section is a felony of the third degree unless the attack causes death, in which event the offense is a felony of the second degree.

Basically, if your negligence led to the dog attack, or if you have a "dangerous dog" that attacks someone; you can not only be sued, but sent to jail.

How do you know if you're dog is a "dangerous dog"? If the animal control officer tells you, or your dog makes an unprovoked attack that causes any injury (not just an SBI).

So, from now on, Kujo is going to be labeled a "dangerous dog", which as far as I can tell is worse than the sex offender registry in that Kujo can never have that label removed.

Could this dog's owner be prosecuted? Not unless he knew Kujo was dangerous.

I was attacked on the sidewalk of Kujo's house, so presumably the first section wouldn't apply. And I'm doubtful my injuries meet the standard for serious bodily injury. To be an SBI requires the injury cause either death, or a substantial risk of death, serious permanent disfigurement or impairment. My knee is swollen, and the Xray turned out negative, but the doctor was optimistic I woud recover in the near future (if I'm not better in a few days I'm supposed to get a MRI). I don't think I'm dying, and hopefully I don't have rabies. So SBI doesn't appear to apply to my injuries.

Don't owners should be careful, especially if your canine has a history of biting or attacking.

Finally, despite the public outcry over my vicious dog assault, I don't want any idiot politician to enact "Robbie's Law", or any knee jerk dog bite legislation in my name. We have enough criminal laws as it is, and I don't want my tragedy be used to further the police state in Texas.

Defense lawyers are not big fans of MADD, or any pro police state organization for that matter. However, one thing I will say is that their public policy liason, Bill Lewis, is an honest guy. DMN ran a round up of the various DWI bills this session. Most died sine die, however the lege did pass one new Tuff on DWI enchancement that will leave first time DWI offenders open to a greater range of punishement if they have a bac over .15 (yet another reason to NEVER take a breath test).

Won't longer sentences stop people from drinking and driving? Shouldn't we all celebrate this life saving measure from the lege? Not so much says MADD. From DMN-

The... act is not a bad bill, Lewis said, "but as for stopping drunk driving, the bill is just not going to do that much."

Exactly the point DWI observers in Texas have been making for years now. We are well past the point of diminishing returns with enforcement. I can't think of what other freedom, liberty, or privacy that is left to sacrifice to the DWI police state. We need a systemic change in the way Texans get to the places they drink, not longer sentences for first time offenders.

This story just keeps on giving. One of the State's leading DWI prosecutors, Richard Alpert, was asked about the death of the DWI "deferred" bill. The "deferred" bill would have most likely led to more plea bargains, but less DWI convictions overall.

The bill, which was supported by prosecutors, defense attorneys and MADD, "had a lot of momentum," Alpert said, but the possible loss of money for the state from surcharges that accompany convictions may have doomed it. "This wasn't the year to be cutting into sources of revenue," he said.

Intoxicated drivers are just another revenue source, and the State has made themselves financially dependent upon same defendants they supposedly loathe. The State has little incentive to stop all drinking and driving. In fact, all the incentives are for the State to maximize intoxicated driving (which they are doing a great job of through suburban sprawl/zoning and a fierce opposition to public transporation).

DPS has their misleading "Drink. Drive. Go To Jail" billboards. When will the Comptroller begin a "Please Drink And Drive, Texas Needs The Cash" campaign?

Facing a DWI charge in Kaufman county? Have a serious drinking problem and/or a history of alcohol related offenses? DWI court may be in your future.

What is the Kaufman County DWI court? This is from a handout I found in CC2. I think the DA's office made this although I can't be positive as no authorship is claimed.

"The Kaufman County DWI court is a twelve month minimum program that integrates local criminal justice resources, case management, and alcohol abuse treatment to rehabilitate targeted repeat DWI offenders. There are two aspects of the program, the Court side, and the Treatment side and there are three phases to the court side. As a participant progresses through the phases, the intensity of the program lessens."

Phase I
- Weekly court meeting
- Group meeting twice a week
- Two AA (or similar) meeting a week
- Weekly probation meetings

Phase II
- Court meeting on the 1st, 3rd, and 5th week of the month
- Two AA (or similar) meetings per week
- Group meeting once a week
- Meet with probation every other week

Phase III
- Attend court once a month
- Aftercare group meeting once a month
- Two AA meeting/week
- Meet with probation every other week

Who is eligible?
- Over 17
- Reside or work in Kaufman county (there may be some leeway with this, just don't live in Houston and expect to be accepted)
- Have no current holds (that means TDC can't be waiting to pick you up)
- Physically and mentally capable of participating in the program
- Eligible to be on probation, or have your probation extended
- Must be alcohol or drug dependent

Disqualifications
- Severe mentally illness
- Prior conviction as an "abusive offender" (I think this means crimes of violence)
- Prior DWI court participant
- Prior felony conviction within 10 years of the immediate case

Why do people enter DWI court?
The carrot in this approach is that defendants get a better plea deal if they enter the program. For example, felony defendants get a shorter probation period (and avoid prison), but they have to sign up for some serious life changes.

I recently watched the Christohper Hicthens/Tony Blair debate on whether religion is a force for good in the world. To paraphrase Mr. Hitchens; "You can expect good people do good things, and bad people do bad things. To get a good person to do a bad thing you need religion." The idea being that one can bypass ordinary human decency and morality by stating that an act is divinely warranted.

The parallels with statism, positive law, and the War on Drugs, are evident to a front line observer of the Texas criminal justice system. The state may not claim divine authority, but it does share religion's ability to get good people to do horrible things.

Which brings me to our appellate case of the day- Hereford vs. State.

Facts- from the 7th Court of Appeals

One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument's log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp's first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if "repeated taser use [was] acceptable" and whether "20 seconds worth of tasering" was "okay," the policeman answered "yes" to both. Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance. In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford's inner thigh region; others saw them being administered to appellant's "groin area.

Fortunately, the Court of Criminal Appeals agreed that the 4th Amendment prohibits electro shock torture as an evidence gathering tool (Keller dissented).

Let's talk about Officer Arp, the man who decide to tase Hereford's groin. Let's assume, arguendo, that Officer Arp is not a sick twisted sadist who enjoys electro torture. What could motivate an otherwise decent person to an act of utter depravity?

Officer Arp testified that he believed Hereford had crack in his mouth. Our State has decreed that simple possession of any amount of cocaine is a felony offense. The State pollutes society at large, and especially LEOs, with Tuff on Crime/Drug War propaganda. Officers are trained to arrest as many crack users as they can to please the bureaucracy and.... out comes the groin taser!

It's been a few decades since the Milgram experiment , in which college students were given orders to deliver (fortunately fake) electric shocks to an innocent person. The shockee would feign heart failure and death, still the students would continue undeterred by the screams of their "victims".

The lesson, summarized by Milgram-

Ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the resources needed to resist authority.

This act of electro torture is the end result of our state's idiotic drug laws, the inflamed War on Drugs rhetoric, and the modern milliatirez LEO mindset.The State is to be obeyed, laws enforced, and if you have to torture a defendant to make a crack arrest, that's just collateral damage.

When you show up in court without an attorney it's not unusual for a judge to set you for trial, especially if you make multiple appearances sans counsel. Judges like to move their docket, and some believe that a trial setting may be what it takes to motivate a defendant to hire a lawyer, or cop a plea with the state.

If you can not afford an attorney, be sure and let the court know early on. Ask for a "Pauper's Oath" or "Affidavit of Indigency" to apply for court appointed counsel, or the public defender.

The economy sucks, and many of you are underemployed, or unemployed, but you still may not be broke enough to qualify for a public defender. Remember, the government's broke too, and if the County can find a way to not pay for your attorney, they will. Most defendants prefer a "free world lawyer" to court appointed counsel, but anything is better than representing yourself at trial.

Let me offer a helpful guide to choosing the last minute defense lawyer.

1. Don't shop for a defense lawyer at the last minute. It's a horrible idea. You are going to pay more for immediate attention, you are going to be under pressure to choose a lawyer NOW, and not have time to consult with multiple attorneys, and finally, lawyers can rarely do their best work when facing a quick jury trial setting.

No lawyer can accept a new trial setting in the next few weeks without losing out of other business, sacrifcing other clients, and/or working whatever nights and weekends they hoped to have off. That kind of immediate attention creates logistical problems for which your lawyer will expect to be compensated.

To avoid the emergency trial premium start shopping for a lawyer as soon as you think the police are interested in you, or at the very least when you bail out of jail.

2. I can see that you skipped number 1. Now what.? First, you need to figure out how much money you have to spend. Depending on the seriousness of the charge, you are going to need a few thousand for any decent attorney to take a trial setting. Don't exepct a lawyer to offer a payment plan with a fast approaching trial setting. The reason is two fold.

First, if you don't pay, they lawyer can rarely withdraw close to trial. Lawyers don't like trying cases for free. A trial is a huge time commitment for an attorney. Pro bono is a noble idea, but a gratis trial fee will put most lawyers out of business.

Second, defendants rarely pay after trial, and defense lawyers know this. If we win, you'll be happy, but you may not be back with our fee. If you are found not guilty, you'll probably blame the lawyer and want a refund, much less want to pay your balance.

So get a number together. When you call attorneys asking them to solve your legal emergency you should be able to tell them the maximum you can spend. A lawyer may work with you to meet that number, but without a real amount you can pay right now, you won't get anywhere with your interviews/phone calls/email inquiries.

3. Who to call? As many excellent attorneys as you can find. This part is the same as hiring a defense lawyer and has been blogged out so much that I have nothing to add. Here is Mark Bennett's guide, read it, and follow his instructions.

I'll say this. Kay Bailey Hutchinson will answer your email. Give her enough time, and you'll get something back. I admire that, even if I don't always agree with her answer. It's been a while since I heard from Jim Pitts or Joe Barton. I'm probably in their SPAM folder somewhere.

Recently (as in a few weeks ago) I asked KBH to consider gutting the ONDCP as a possible debt reduction solution. Could a $14 trillion dollar federal debt be enough to make KBH question cutting the few million the feds spend on WOD propaganda?

The GOP is ground zero for the collision of social and fiscal conservatism. On one hand, the budget is in a debt death spiral, on the other, we have to think of THE CHILDREN who would, but for the genius of "this is your brain on drugs" ads, become instant crack addicts!

KBH responds-

Dear Friend: Thank you for contacting me regarding the possible elimination of the Office of National Drug Control Policy. I welcome your thoughts and comments.

Illegal drugs are a problem at every social and economic level. They threaten the fabric of our society, especially our young people. Combating illegal drug use and distribution is and must continue to be a critical federal law enforcement priority.


However, skyrocketing federal deficits require redoubling our efforts to ensure that every taxpayer dollar is spent as effectively as possible. Every federal program and agency, including the Office of National Drug Control Policy, must and will be scrutinized. Overlapping and ineffective bureaucracies must be eliminated.


Many in Congress, including me, are determined to make drastic changes and control the runaway federal spending that has added $3.5 trillion to the national debt in just three years. We have struggled to reach agreement with the White House and its Congressional allies on spending reductions for the current fiscal year that are no more than a deficit-cutting down payment. The larger battle will be joined when Congress attempts to embed deeper cuts in the fiscal year 2012 federal budget. Please be assured that I am committed to winning the fight to restore fiscal sanity and balance the federal budget.

I appreciate hearing from you, and I hope that you will not hesitate to contact me on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

Everyone on paper wants the same thing, to be off paper and done with probation. The best way to finish probation is to apply for judicial clemency under 42.12(20). This provision allows the judge to not only terminate your probation early, but to do so in a way that effectively dismisses the underlying charge (with a few exceptions).

What does a DWI defendant possibly have in common with a sex offender? Both are ineligible for early release under this provision.

ec. 20. (a) At any time, after the defendant has
satisfactorily completed one-third of the original community
supervision period or two years of community supervision, whichever
is less, the period of community supervision may be reduced or
terminated by the judge. Upon the satisfactory fulfillment of the
conditions of community supervision, and the expiration of the
period of community supervision, the judge, by order duly entered,
shall amend or modify the original sentence imposed, if necessary,
to conform to the community supervision period and shall discharge
the defendant. If the judge discharges the defendant under this
section, the judge may set aside the verdict or permit the defendant
to withdraw his plea, and shall dismiss the accusation, complaint,
information or indictment against the defendant, who shall
thereafter be released from all penalties and disabilities
resulting from the offense or crime of which he has been convicted
or to which he has pleaded guilty, except that:
(1) proof of the conviction or plea of guilty shall be made
known to the judge should the defendant again be convicted of any
criminal offense; and
(2) if the defendant is an applicant for a license or is a
licensee under Chapter 42, Human Resources Code, the Texas
Department of Human Services may consider the fact that the
defendant previously has received community supervision under this
article in issuing, renewing, denying, or revoking a license under
that chapter.
(b) This section does not apply to a defendant convicted of
an offense under Sections 49.04-49.08, Penal Code, a defendant
convicted of an offense for which on conviction registration as a
sex offender is required under Chapter 62, as added by Chapter 668,
Acts of the 75th Legislature, Regular Session, 1997, or a defendant
convicted of an offense punishable as a state jail felony.

The Court of Criminal Appeals recently addressed this provision in 2002 in Cuellar vs State, 70 SW 3d 815.

There is, however, a second, less common type of discharge under Article 42.12, § 20. This second type of discharge is not a right but rather is a matter of "judicial clemency" within the trial court's sole discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex.Crim.App.1996) ( "[Section] 20 provides a mechanism to release a convicted person of all legal disabilities upon successful completion of probation."); Hoffman v. State, 922 S.W.2d 663, 668 (Tex.App.-Waco 1996, pet. ref'd) ("Among the district court's several powers is the authority to dismiss an indictment or information against a convicted felon once he has successfully completed the terms of his probation."). That is, when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may "set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty."4 Tex.Code Crim. Proc. 42.12, § 20(a);5 State v. Jimenez, 987 S.W.2d 886, 888 n. 2 (Tex.Crim.App.1999) ("Under Texas law, successful completion of probation allows the judge to dismiss some charges without a final conviction."). These words are crystal clear. There is no doubt as to their meaning. See Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991).6 If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom "released from all penalties and disabilities" resulting from the conviction. Art. 42.12, § 20(a).5 Once the trial court judge signs

If drugs were legal, if officers weren't routinely confronted by thousands, ten of thousands, and hundreds of thousands in black market profits (in cash no less), John McAllister would still be a police officer. Instead, the former head of the Narcotics Unit of Mesquite PD is facing a federal charge for allegedly stealing what he thought was drug dealer cash in an FBI sting. The same Prohibition 2 that gave McAllister a livelihood, also gave him the opportunity to become a criminal himself.

Why did Officer McAllister start pocketing cash from drug busts? The same reason drug dealers go into the business. Assuming as economist do, that we are self interested rational actors, humans make the decision to commit or not commit an offense by weighing the benefits of crime against the probability of apprehension, and the possible punishment if convicted. Factor in other existing opportunities and a person's moral restraint/self control, and if the numbers work out, a crime is born.

Officer McAllister's moral compass wasn't enough to keep him from taxing drug dealers for his own benefit. And why not? The government steals (forfeits) from users and retailers all the time. Officer McAllister just forfeited some cash for his own personal use instead of sending it down the bureaucratic black hole.

McAllister was skimming the skim, not unlike the count room employees in Casino. Once you give the government the license to steal private property, it's not a huge stretch before the employees of said government feel entitled to take a little as well.

It doesn't have to be this way. You don't see cops robbing liquor stores or taking protection money from Pfizer. If you choose Prohibition 2, you are signing up to support police corruption. You can't be for one, and against the other.

Drug war police corruption is so rampant that StopTheDrugWar.org carries a weekly update to help you keep score.

McAllister is just the tip of the iceberg. Like drug users and dealers, most dirty cops are never caught. Remember the second half of the "should I commit this crime?" equation, the probability of apprehension. It's comically low for dirty cops.

First, we don't spend much time looking for them. The feds had to bust this Mesquite PD officer because Mesquite PD wasn't going to investigate one of their own. Second, cops never snitch on cops, even crooked ones. Finally, drug dealers and users who are robbed by police are never taken seriously.

Terry vs. Ohio gave us the Terry stop, in which cops can investigate a situation that looks an imminent crime, but where no crime has yet occurred. In Terry, an officer saw individual casing an establishment and he approached to see if a burglary was nigh.

Since then, officers have been able to prevent and investigate imminent crimes. All SCOTUS required was the officer articulate facts showing a particular crime was about to committed. With that background let's go to our most recent appellate disaster,Derishweiler vs. State-

Facts- Derischweiler was in a McDonald's parking lot. Derischweiler drove by a car occupied by a paranoid couple of modern day hall monitors, the Holdens. Derisch drove by 2 or 3 times, each time smiling and staring at the Holdens for 10-20 seconds. Naturally, the Holdens did what all beta loser couples do, they demanded immediate state intervention and called 911.

On a side note- I'm not sure the Holdens are capable of functioning in a free society. Perhaps they would prefer a safer country like North Korea, where nothing weird ever happens. Their baseless fear means we all have to lose our 4th Amendent rights. Thanks guys.

Some bored rookie cop shows up with a report of a "suspicious driver" and dutifully pulls over Derischweiler. Bored Rookie Cop did not see Derishweiler commit any offense, nor could BRC articulate any offense that Derisch was about to commit. In short, he pulled him over on an inarticulable hunch, the kind that Terry prevents. Derishweiler was eventually arrested for DWI and convicted. Derisch appealed his conviction, arguing the stop to be FUBAR.

Issue- Can cops pull over whoever they want, without any reason to believe a particular crime has been or will soon be committed?

Holding- It's ok for cops to detain you without any evidence you have committed, or are about to commit a specific crime as long as a majority of CCA judges believe the conduct is sufficiently bizarre and "related to crime."

From the majority opinion-

"The appellant's conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability--a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense."

Here is a cross examination moment from my future-

Me- Why did you stop my client?
Cop- I had reasonable suspicion.
Me- Reasonable suspicion of what?
Cop- Activity related to crime.
Me- Related to crime? What the hell does that mean?
Cop- I'm not sure, but some prosecutor sent a memo that we should put that phrase in all our offense reports when we pull someone over without cause, along with "totality of the circumstances."
Me- Well, what crime was his activity related to?
Cop- I'm not sure, just crime in general.
Me- Here's a copy of the penal, transportation, and health and safety codes. Can you show us one crime that you had a reasonable suspicion was about to be committed?
Cop- No, but his behavior struck me as bizarre, and that's enough in Texas.

We have created a new class of verboten activity in Texas. Anything sufficiently weird that is "related to crime" is enough to bring on the wrath of the police state. Texas has thousands of offenses, how "related" to crime can conduct be if an officer can't articulate one actual real life crime that has been or will soon be committed?

This Orwellian logic gives cover to racial profiling, paranoid busybodies, and crooked officers looking for a reason to harass their enemies. We traded one more piece of the 4th Amendment, to save a meaningless DWI conviction.

Need to email your prosecutor?
Dallas DA email addresses.pdf

If there is one book every prosecutor, LEO, and judge should have to read it is The Economics of Prohibition by Mark Thornton (available for FREE here). TEOP explains, with a precision and clarity that can only be found in economic theory, the set-your-watch-by-it predictability of Prohibition's horrible externalities. That is, what terrible things happens every time a government chooses to make popular recreational drugs illegal. (Spoiler alert- cartel violence, black markets, mass incarceration, corruption, inter alia). Today's dreadful consequence of prohibition is the "potency effect".

From the brilliant Mark Thornton via mises.org-http://mises.org/daily/4971

Economics provides the best explanation for the surge in popularity of meth despite the disproportionate danger of its use. Increased enforcement of drug laws, backed by increased penalties, led to higher prices and decreased availability of preferred recreational drugs such as marijuana and cocaine. High prices and periodic shortages led drug dealers and consumers to find substitutes -- ersatz goods that would produce similar results but at a lower cost.

The scourge of crystal meth is another example of the "potency effect" or what has been called the "iron law of prohibition." When government enacts a prohibition, increases enforcement, or increases penalties on a good such as alcohol or drugs, it inevitably results in substitution to more adulterated, more potent, and more dangerous drugs.

In the case of crystal meth, authorities have tried to restrict the supply of the basic ingredient, which is a common component in cold medications. They required that such medications be sold in pharmacies from behind the counter and limited to a one-month supply. More recently, some states have required that buyers be tracked electronically to prevent purchasing from multiple pharmacies.

In response, meth producers have recruited large numbers of intermediaries, including their friends, relatives, college students, and even children and the homeless. These recruits buy the cold medicine and can sell it to the labs for a 500 percent profit. A review by the Associated Press shows that thousands of people are being lured into this drug trade. "Law enforcement was surprised," St. Louis County Sgt. Tom Murley said. "People that normally wouldn't cross the line are willing to do so because they think it's such a sweet deal, and because of the economy."

Fortunately, in addition to answers and explanations, economics can show us the path away from this now decades-old trend -- the trend toward more potent and more dangerous drugs. After all, a certain portion of society will, regardless of legal restrictions and enforcement, choose to use drugs. So the solution is quite simple, really: end the drug war. Less enforcement and lower penalties would reduce the price of marijuana and shift demand from crystal meth back to marijuana, a drug that has few of the problems associated with meth.

When a meth lab operator (MLO) is apprehended, our criminal justice system puts all responsibility, punishment, and impetus to change behavior on the MLO and his smurf friends. During punishment the government stands up with a smug sense of bueracratic moral certainty and declares said MLO a scourge on society, solely responsible for his actions, and worthy of a lengthy sentence. The defense lawyer tries to rehab the client, and seek mercy on this individual for his choices. More often that not, MLO goes away for a few years or decades, taxpayers foot the bill, a new MLO takes his place, and the perpetual assembly line of drug arrests, prosecutions, and convictions continues unabated.

If the MLO is responsible for cooking the ice, shouldn't the DEA be accountable for creating the ice industry? I'd love to argue, but probably never will, that the MLO and his merry band of smurfs wouldn't be here if we had ended this drug war nonsense years ago, and let market forces provide the preferred substances in a regulated market environment. But for the government's drug war, crystal meth wouldn't have a market, or even have been invented in the first place.

Want to end smurfing, backyard meth labs, and the inane Sudafed registry at CVS? Regulate and tax the "preferred recreational drugs". Otherwise don't act surprised when a new potent drug comes down the crack/ice pipeline. It's not just "evil" dope cooks who deserve society's wrath, it's the failed policies that guarantee a future supply of dope cooks.

Lawrence Boyd is a great guy, and a badass Dallas DWI lawyer. He literally wrote the book on Texas ALR hearings. The best DWI lawyers in Texas pay to hear Mr. Boyd speak at seminars.

I had the pleasure of hanging out with Lawrence at a conference last summer (SPI), and am proud to have him as a colleague, and facebook friend.

Facebook is how I got Lawrence thoughts on the Lujan disaster. Larry wrote out the following, as a comment to my shameless facebook link to my own blog post on Lujan vs. State.

Before you read Mr. Boyd's insight, you must be forewarned that his thoughts and writings are the intellectual property of Knowles publishing, and not to be reproduced without their consent.

A type of roadblock to verify drivers licenses and vehicle registration may be permissible, but checkpoints to detect evidence or ordinary criminal wrongdoing are not. During the direct-examination in Lujan, the "AO" stated that the officers were just there to check drivers licenses; however, on cross, he stated that the purpose of their unit was to take care of racing, DWI, traffic enforcement, narcotics, and other particular tasks. They were present for any violations they would see.

In the trial court in future cases, we have to have the court issue specific findings of fact and conclusions of law that the Judge did not believe that the roadblock was there for the primary purpose of checking for licenses but that the presence of dogs and other admissions by the police undermined the credibility of the officer to the extent that the trial court concluded that it was an impermissible "general purpose roadblock.".

When I spoke @ the Stu Kinard Advanced DWI course on 11/18, 2010, I warned everyone there that, since this appeared to be a settled area of the law, then why would the Court of Criminal Appeals grant a petition in this case?

As you point out, our Court appears to be on an activist binge to eliminate our Fourth Amendment rights again. So much for judicial self-restraint. If you haven't read the Foster case, they also greatly reduced the State's burden to show reasonable suspicion of DWI by requiring only "some minimal level of objective justification" for the stop. I expect more bad news forthwith.

Judge Meyer's dissent in Lujan is worth reading because The Supreme Court of the United States has "never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 412000).

The checkpoint in Lujan included a K-9 unit. So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers' licenses and insurance, then the deputies did not need drug-sniffing dogs. This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based upon the facts of this case, Judge Meyer disagreed with the majority and would have concluded that the primary purpose of the checkpoint was to "uncover evidence of ordinary criminal wrongdoing," in contravention of the Fourth Amendment.

The legislature has batted around the idea of DWI checkpoints for years. Fortunately, our elected officials have never decided to approve the deplorable practice of treating every Texas driver like a criminal sans cause.

Despite the best efforts of MADD, Texans want the police solving crime, not harassing innocent motorists.

Fortunately for the "papiere bitte" crowd, the legislature isn't the only way to create new police powers in Texas. Save that lobbyists money MADD, invest in a few Amicus Curiaes instead. A body of elected officials in Austin just approved drug detection roadblocks, and it wasn't the legislature.

Lujan vs State- (here is a good summary at Justice for Yall)

What happened? The El Paso Sheriff set up a roadblock, in which they stop, detained, and harassed drivers without cause. The deputies testified that the "primary purpose" of this roadblock, was to check for insurance/ DLs. But they just happened to have a K-9 drug detection unit nearby, to, you know, help check for insurance.

Lujan was detained, didn't have his license, the K-9 was unleashed on his car, and the cops found a few grams of cocaine. Drug war rant- engage! Think about the tax dollars wasted on the prosecution and appeals, all over a few grams of coke. What, is El Paso out of blow now? What if Lujan was going to be the next Barack Obama, or W? Both former cocaine consumers who didn't get caught, and became POTUS. Did I mention that over 30,000 Mexicans have died in the last 4 years because we gave the cartels a monopoly on the American cocaine market. And if that's not enough now the government wants to repeal another piece of the 4th Amendment to save this meaningless conviction. Ok. Back to Lujan's appeal.

Lujan appealed his conviction, arguing that this roadblock was a subterfuge to check for drugs and a 4h Amendment violation. The court of criminal appeals disagreed.

From the opinion-

If the primary purpose of the checkpoint is lawful- a license check as opposed to general law enforcement-police can act on other information that arises at the stop. The checkpoint's primary purpose of license and insurance verification does not prohibit police from considering other unrelated offenses that they discover during the stop. Edmond, 531 U.S. at 48. In Edmond, the Supreme Court made clear that officers are not required to conduct the license and registration check wearing blinders and ignoring any other violations of the law that they observe. Officers can still act on what they learn during a checkpoint stop, even if that results in the arrest of the motorist for an offense unrelated to the purpose of the checkpoint. Id.

A brief suspicionless stop at a checkpoint is constitutionally permissible if its primary purpose is to confirm drivers' licences and registration and not general crime control. Id., at 39. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was a permissible license and insurance check. Ross, 32 S.W.3d at 855. This finding was supported by the record.

That almost sounds like protection from over zealous police checkpoints. But guess what? Right now, every cop in the State is being told to testify their checkpoint was just to check for DLs/insurance. Police policy memos will be drafted stating that the "primary purpose" is not for drugs/DWI, but have a K-9 unit, or DWI investigator handy anyway.

It's a drug detection roadblock in all but name, all cops have to do is apply the right label to their activity, and it can pass fourth amendment muster. Words spoke louder than actions in Lujan.