Criminal Appeals

May 16, 2018

Submitting Law and Order SVU Episodes as Evidence?

It is not as crazy as it sounds.

Defensive theories, while totally credible, can sometimes be perceived as outrageous. In some of these cases, different types of evidence is used to prove a defensive theory. But, this evidence must meet the requirements of the Federal Rules of Evidence and be relevant to the case.

Let’s say you are facing an aggravated sexual assault of a child charge and one of your theories is that the child artificially inseminated herself and got the idea from the popular television show Law & Order SVU, sounds crazy right? Well, believe it or not, there is a case on it.

May 16, 2018

Reasonable suspicion…

by Robert Guest

For any officer to make a traffic stop he or she must have reasonable suspicion. But, what is reasonable suspicion? Well, based on the famous case, Terry v. Ohio, the officer must have the belief based on specific articulable facts that criminal activity is afoot. But still, what does reasonable suspicion mean? Just like most law driven answers, “it depends” and “it’s determined on a case by case basis.”

Does an officer have reasonable suspicion for a traffic stop when the vehicle is in the same area of reported gunshots?

In the 5^th district court of appeals case, Texas v. Montiel-Contreras, the answer is yes. Here, the defendant, charged with DWI, after being pulled over in the same complex where gunshots were heard. The officer heard gunshots coming from the defendant’s area on top of numerous 911 calls made that night describing hearing shots and seeing a black man with a gun.

January 11, 2018

Insults and Habitual Offenders

by Robert Guest

Can a prosecutor insult a defense lawyer at trial?

In the Texas 5^th District Court of Appeals case, Gutierrez Jr. v. Texas, the issue known as “going over the shoulder of counsel” is argued. Surprisingly, prosecutors may sometimes throw an insult or two at the defense table. At times an objection can be made and the trial will proceed, but there are few instances where these insults can warrant a mistrial.

In the case mentioned above, the prosecutor told the jury “don’t believe what the defense attorney is saying, he is paid, he has been appointed in this case actually.” The defense counsel objected and moved for mistrial. The objection was sustained but the mistrial was denied.

October 31, 2017

Expunctions, they can be reversed.

by Robert Guest

What is an expunction?

An expunction is available to a someone arrested for a crime, but never convicted, or to a person given deferred on a Class C misdemeanor. Expunctions are for arrests only, they serve as a way to have the arrest taken off of your record.

The process.

July 7, 2017

Testimonial Statements and the Confrontation Clause

by Robert Guest

The 6^th and 14^th Amendments of the United State Constitution guarantee an accused party the right to “be confronted with the witnesses against him.” Meaning that if you are charged with a crime and proceed with trial, you have a right to cross-examine testimonial statements by the witness.

Crawford v. Washington 541 U.S. 36, 68 (2004) says that these statements are not admissible against the accused unless the person who made the statement is unavailable and the accused had a chance to cross-examine them.

What are testimonial statements?

May 9, 2017

Does the State have to produce any photos to convict someone of improper photography?

by Robert Guest

You can be convicted of improper photography in Texas, without any photographs.

Everyone has a camera these days. Even crappy cell phones usually have an 8-megapixel HDR camera on board. Your Instagram feed is full of strange photographs, and some stuff you’d rather not see. But in Texas, some photographs are illegal.

What is improper photography in Texas?

April 18, 2012

Dallas Court of Appeals Affirms Kaufman County Drug Conviction

by Robert Guest

I often have a hard time quickly explaining to my non-lawyer friends exactly how the appeals system is stacked against criminal defendants. Fortunately today’s case, Barnes vs. State, crystallizes how the constitutional rights of defendants are effectively waived through nonsense technicalities. It’s a Kaufman County Drug case, appealed to the 5th District in Dallas.

What happened?

Barnes filed a motion to suppress claiming the police investigation was unconstitutional. Specifically, Barnes sought to exclude statements made during the investigation. This motion was denied (as are most motions to suppress).