Dallas Criminal Defense Lawyer Blog

DMN has the story of a Wylie video store owner who has his customers arrested for late videos. This piece is sure to generate some outrage in the comments section. "You shouldn't arrest someone for late DVDs!!!" etc. I'm not sure how arresting for late videos is any less repugnant that arresting college kids with joints, but I digress.

From DMN-

Bell went to a Collin County justice of the peace to file paperwork on dozens of his customers who were charged with theft of services.

The court issued arrest warrants for those who failed to pay up.

Some Video Hits customers paid fines of up to $870; others were arrested by the constable

The video rental vigilante is a high profile example of the merchant/law enforcement collections alliance. It's also a good introduction into the Hot Check Hustle taking place across our state.

Texas law allows merchants to have customers arrested for bad checks. The police are human repo men, county jail is our debtors prison, and the DA is the BigDebt collection firm.

How do insufficient funds become "theft" cases? Two ways.

The first is when you write a check on a closed account. No complaints from me there, that's fraud. Intent seems fairly obvious.

The second is where your checks bounces for insufficient funds. Intent seems to be lacking in this situation because it often is. How many of us have bounced a check? Were you intending to steal anything?

In our second scenario the merchant can mail you a letter with some magic language that demands payment. If you don't pay within 10 days the law creates a presumption that you intended to defraud the merchant.

Presumptions of intent are fraught with peril. They allow the DA to file a case and issue a warrant without doing any investigation. The result is that merchants drop off stacks of checks with affidavits and the DA files a case or sends a demand letter. It's law enforcement sans investigation. How do you think that turns out?

Like red light debt cameras this automated law enforcement system lacks the ability to distinguish the innocent (or indigent) from the criminal.

What's wrong with arresting for bad checks?
First, it's overkill. Checks over $20 are a class B misdemeanor. If you bounce a few $25 checks one month and can't pay them you are looking a arrest, bail, and prosecution with a possible 180 days in jail and $2,000 fine on each case.

Second we are in a recession, checks bounce, merchants (like me) who accept checks should accept the risk of non payment and adjust their policies. I've not been paid for work done (eg DWI dismissed and the check bounced). It hurt, it sucked, and I adjusted my policies accordingly. If I'm going to take non cash items, I accept that there is a degree of risk involved.

There are options available for those who still choose to accept checks. I investigated one of those instant check verification systems a while ago. If we are going to allow arrest for bad checks, we should require the merchant to exercise some due diligence in accepting checks.

Finally, there is no protection for identify theft victims. I've seen scores of cases where a check book was stolen, or someones ID was used fraudulently. The result is that victim of ID theft gets arrested (sometimes out of State) and prosecuted for a checks they didn't write. That's what happens when you presume intent and conduct no investigation.

Many DA's office will send a letter demanding payment prior to filing the case. This is all that stands between ID theft victims and wrongful arrest and prosecution. So check your mail.

Third, it's not equitable. If non payment is going to be a crime that why not make DTPA (consumer protection) violations a crime also? If you paid your hard earned money for a car, and it turns out to be a lemon your remedy is a lawsuit. Why not create a presumption of fraud and have the dealer arrested instead?

I think civil courts are best equipped to handle non payment. We should save the theft designation for actual intent to steal, not invent intent where it doesn't exist.

Did I mention DA across the State collect millions in hot check fees each year? The law creates a special hot check slush fund for DA's to spend on salaries for other "expenses" (Xmas parties).

DAs (who duty is supposed to be justice, not collections) have assumed the role of big debt law collections firms. Instead of merely harassing you over the phone, they throw you in jail until you pay. It's time to end the slush fund debtors prison injustice and only prosecute theft cases where there is actual evidence of theft.

I received a speeding citation last week on the notorious I-45 speed trap. Allegedly, I was going 73 in a 60. In my pre blogging days I would call the court and ask for deferred adjudication, pay the tax (fine) and move on.

However, the Google SEO gods demand constant sacrifices of content so I'm considering setting this case for trial and blogging the experience. I haven't completely committed to that endeavor just yet. The time obligation could be too great, and I may just give up and pay the fine. I also need to check and see if this is a court of record. That way if I have a trial and lose, I can appeal de novo and still get deffered or have another trial.

First, let's look at the laws regarding speeding in Texas. Most people think it is illegal to simply drive faster than the posted speed limit. While you can always be ticketed for driving over the speed limit, you may not be guilty of speeding. How's that? To chapter 545 of the Texas Transportation Code-

SUBCHAPTER H. SPEED RESTRICTIONS

Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.

So why do cops pull people over for speeding when there is no evidence of unreasonable or imprudent speed? That's where speed limits come in.

Sec. 545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.

Driving over the speed limit creates a rebuttable presumption that you were being unreasonable or imprudent. That is, the State has proven you were violating 545.351 by showing you drove over the speed limit. From that point it's up to you to show you were being reasonable and prudent. This allows cops to ticket you for going any amount over the speed limit, even though you may be able to beat the case at trial.

Trials have large opportunity costs so most people pay the fine and/or call and ask for deferred.

Probation can be tough for a lot of reasons. From failing drug tests, to failing to report, to missing a meeting there are dozens of ways to get your probation revoked. It has come to my attention that the revocation process is not well understood by probationers. Let me hit a few high points.

No Juries
A probation revocation hearing is always in front of a judge. You have no right to a jury trial.

Range of Punishment- How much time are you looking at?
Depends. If you plead for deferred adjudication then you are open for the entire range of punishment for your original offense. For example, if you are on deferred for a first degree felony you could anything from 5-99 years, or the judge could continue you on probation.

If you are on "straight" probation (non-deferred) then your maximum sentence has already been decided. Let's take a third degree felony with a 2 for 5 plea. You are sentenced to two years in jail, probated for five years. 5 years is your maximum sentence. The judge could give you less time, or you could work out a plea bargain for less time.

Beyond a reasonable doubt? Nope.
The State need not prove you violated probation beyond a reasonable doubt. Instead, it's a "preponderance of the evidence." What is POTE? 51%. That is, it's more likely than not, or the evidence is 51% in favor.

Failure to pay
The State wants its money and will revoke you for not paying fines, fees, and costs. Inability to pay is an affirmative defense that the defendant has to prove by a POTE.

New Charges
You are on probation and you get arrested again. First, you must report an arrest within 48 hours of release from jail. However, getting arrested is not enough to revoke your probation. The State must prove by a POTE that you committed a new offense.

If you get arrested call your attorney, and your PO, immediately.

Bond
Deferred probationers are entitled to bail. Word of this requirement has not spread to Kaufman county where felony probationers are almost always denied bail. The reason? Whoever typed the "recommended bond schedule" listed felony probation revocation cases as "no bond". Being entitled to bond isn't as great as it sounds. I've seen these bonds set at $200,000. Bond is not supposed to used for oppression, but we do it anyway.

If you are not on deferred no bond could be set, but you can still have a hearing to lower it. However, you are not entitled to bond.

Can I be reinstated?
Depends on the charge, and what county you are in. I have found that paying your fines and fees is a great place to start. The government loves money and they may sell you back some freedom for cash.

A better question may be "Should I be reinstated?" Some people suck at probation. You can't drink, use any drugs, or commit any new crimes. Also, you have to work, report, do community service, and take classes. It may be too much to handle for some. Many probationers choose to just sit out a sentence rather than complete another year or two of supervision.

I can't say I blame them. Our community supervision system almost guarantees failure. We put addicts on probation, and then act surprised when they test positive. We put the indigent on probation and then act when surprised the can't pay.

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.

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!

My wife and I saw Gran Torino last night. GT is a great film worthy of all the Oscar buzz. I don't usually do movie reviews but here goes.

GT is a formulaic Eastwood in a good way. Dramatic, funny, and ultimately tragic. The whole time I was just waiting for things to go horribly wrong Million Dollar Baby style. And wrong they went.

Spoiler alert- I'm going to give away the ending so we can discuss the castle doctrine. If you aren't willing to trade your surprise for this discussion click here.

Client Eastwood's character Walt is a bigoted veteran who loses his wife. Walt befriends a young boy (Toad) and his sister who live next door. Toad and his sister are harassed by local gang members.

During an altercation Walt points his M1 rifle at the gang. Later, Walt beats the crap out of one gang member. Finally, the gang members assault Toad and rape his sister. You know this isn't going to end well.

Dirty Harry shows up at the gang's house for a final confrontation. Walt points his finger at the gang members and says "bang", shooting them with an imaginary hand pistol. The gang members are nervous, and armed with an assortment of firearms.

Suddenly, Walt reaches into his jacket. The gang members quickly fire multiple rounds into the Space Cowboy, killing him. Walt wasn't carrying a gun, only his lighter. The gang members are arrested with the expectation of long prison sentences.

Such is the ending of Gran Torino. Walt sacrifices his life so his friends can live in peace. Typical depressing Eastwoodian conclusion.

The movie took place in Michigan. Would Walt's plan work in Texas? Would the gang members go to prison? Or would the castle doctrine have justified their use of deadly force?

Disclaimer- THIS IS NOT ADVISE (LEGAL OR OTHERWISE). DON'T SHOOT OR NOT SHOOT ANYONE BECAUSE OF THIS. IF YOU DO, YOU ARE A MORON.

If you must read my wildly speculative thoughtless ramblings the discussion is below the jump.

Continue reading "Gran Torino and the Castle Doctrine" »

Having a law blog guarantees a steady stream of email questions. It has come to my attention that many of you are pursuing a certain career, and worried about the effect of a criminal charge.

Readers will send me information on some old criminal case in which they took a "great" plea offer and were told (erroneously) that a deferred or reduced charge would not appear on their record or prevent them from entering a certain field.

Potential cops, law students, firemen, and teachers, have contacted me with similar concerns. Here are the three most common questions.

1. What is on my record?
2. Can I have this removed from my record?
3. Will this keep me from getting hired/licensed/accepted?

1. Most people would be surprised to know there is no one official "record" for you. The police and prosecutors of Texas utilitize the National Crime Information Center. Private employers typically use background search companies like KnowX.com, public data.com, or intellius.com. Finally, DPS keeps a database of criminal records, and the county you were convicted in should have your case as the clerk's office.

What is on your record depends on which one is being looked at. In my experience it may not matter. You will probably be required to disclose this information yourself when applying. My law school application required all conviction/criminal charges to be disclosed.

2. Can the charge be removed, expunged, non disclosed or otherwise kept from view?

Maybe, maybe not. Here are the rules for Expunction.

Here are the rules for non disclosure.

3. This is area I know the least about, whether or not that old criminal case will prevent you from getting a license, or job, or into grad school. The only professional license I am familiar with is my own. I knew law students who had a DWI in their past and still were allowed to practice law.

I advise asking someone in the field you are considering, calling the employer, and checking the licensing requirements (for Texas) here- http://www.state.tx.us/portal/tol/en/gov/9

Nothing excites Texans like football (especially Red Raider football). Nothing excites the Texas legislature like creating a new criminal law for every perceived societal problem. Combine the two and you get...

32.441. ILLEGAL RECRUITMENT OF AN ATHLETE.

(a) A person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics.

This "crime" ranges from a Class C misdemeanor (for a benefit less than $20) to a first degree 5-99 years felony (for over $200,000).

I find more than a small amount of hypocrisy in the law. Unlike baseball, we force college football players into an amateur minor league system. College football players have amazing skills that generate millions in revenue for their schools, yet the athletes see little of that. The last big 12 TV contract was for $500 million dollars. BCS bowl games pay each college $17.5 million. The "governing body", in this case the NCAA, is not sharing that money with the players. And if boosters, fans, or alumni voluntarily pay we make that a crime.

I'm sure proponents of this law will argue for sanctity of amateur athletics. But do really need another criminal law just to protect the NCAA minor league football monopoly?

Specialized courts are all the rage. We have DWI courts, Drug Courts, and more recently a new speicalized court for prostitutes. DMN reports

Dallas court helping put prostitution in the past

06:41 AM CDT on Tuesday, October 28, 2008

By TIARA M. ELLIS / The Dallas Morning News
tellis@dallasnews.com

These days, Cheryl Sneed dresses more like a church lady than a lady of the night. She's been both.

But for the last two months Mrs. Sneed and about 20 other former prostitutes have given up selling their bodies in exchange for freedom.

"These women have been where I've been," said Mrs. Sneed, 49. "We were all in the bottom of life, in the depths of hell out there in those streets. This program has been a miracle to me."

The program to which Mrs. Sneed refers is called STAR Court, which stands for Strengthening, Transition and Recovery. State District Judge Lana Myers started it in July to help get habitual prostitutes off the streets. The women usually meet in her Dallas courtroom on Monday afternoons to talk about their progress and their setbacks.

It is believed to be the only such "prostitution court" in the state.

What isn't discussed is if prostitution should be legalized. After all, even Dallas SWAT members enjoy the company of professional escorts.

Texas Prostitution Laws
In Texas, prostitution is a misdemeanor with the possibility of up to 6 months in the county jail.
From the Texas Penal Code

Sec. 43.02. PROSTITUTION.
(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or
(2) solicits another in a public place to engage with him in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.
(c) An offense under this section is a Class B misdemeanor...

It is the commercial aspect that makes prostitution illegal. This activity is legal unless done for a fee, or "for hire". Kind of a strange line for morality.In the age of craigslist and internet escorts the streetwalker stereotypes are changing rapidly. Do we still want cops busting johns and hookers when Dallas has a lousy 6% crime clearance for burglaries?

Opportunity costs aside; should this conduct be constitutionally protected? In Lawrence vs. Texas SCOTUS struck down the Texas sodomy laws finding a right for adults to engage in consensual sexual activity. Shouldn't the same logic apply to commercial sex?

From SCOTUS

[The State of Texas] seeks to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons

Texas' Drug Free Zone (DFZ) law is a testament to the failure of Prohibition. If our drug war worked special laws to keep drugs out of certain areas wouldn't be necessary. But I digress.

So what is a Drug Free Zone?
Basically in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground; or in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility or on a school bus.

The DFZ fantasy is that cops are busting drug dealers who prey on innocent school children. In my experience most DFZ charges are brought against adults with a joint in their car 900 feet away from a prohibited area. Local cops quickly learn which roads are in a DFZ, and adjust their traffic stop/fishing for drugs activity accordingly.

What happens to a DFZ case?
This is fairly complicated. Basically, the punishments are increased. More jail time, probation can be denied, sentences can be stacked. Read this great article from TDCAA for more info.

Wait a minute, this law would make every college a drug free zone. I've been to college and it's no drug free zone.
Good observation. Since most legislators went to college, and/or have kids in college, some DFZ provisions don't apply to college campuses. For example, simple marijuana possession on a college campus doesn't fall under the DFZ law.

Thanks to the TDCAA website for posting this memo from CPS. Recently, CPS was sued by two parents in Fort Bend County for numerous constitutional violations.

The 5th Circuit Court of Appeals held that CPS could be liable to future litigants (under a 1983 claim). Normally, the government grants itself immunity from lawsuits. However, the 5th Circuit held that CPS may not have immunity if they continue to violate the constitutional rights of parents. Rightfully, CPS is scared about the possibility of massive judgments against them. Hence this urgent memo to employees.

From the CPS memo-

On July 28, 2008, a federal appeals court with authority over Texas handed down a decision in a case that will be referred to as “the Gates case.” The decision is binding on Texas and because it involves federal constitutional rights, supersedes anything to the contrary in Texas law, or DFPS policy or practice.

I. INTRODUCTION

The Gates case is significant for two key reasons. First, it sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home. Second, it is significant because it clarifies that if the standard is not followed, staff could be sued as individuals and lose qualified immunity, i.e., be responsible for monetary damages.

CPS may consider this a "new" standard. I disagree. The Constitution has been around longer than CPS. CPS shouldn't be surprised that it applies to them.

Consent Searches
Just like the police will ask for consent to search your car, CPS will ask for consent to search your home. This memo reminds CPS that they can not invade private residences without a court order, consent, or emergency.

Parents, read this section and learn these rules. If CPS wants to enter your home it is not to help you. Call an attorney to protect your rights.

I

V. ENTERING AND REMAINING IN A HOME

A. SUMMARY

As with removals, in order to gain entry into a home for the purpose of a CPS investigation, we must have one of the following: 1) exigent circumstances, 2) consent, or 3) a court order, but the Gates ruling provided additional explanation concerning exigent circumstances and consent that will affect our practices.

NOTE: even if we do have exigent circumstances to enter a home, it may be more appropriate for safety reasons to call law enforcement to gain entry.

Current Practice: CPS enters a family’s home only if we have exigent circumstances, consent, or a court order. CPS does not always ensure consent is specific to our investigators. A court order in aid of investigation is rarely utilized.

New Practice: As with removals, exigent circumstances are present only where there is immediate danger to a child in the home, i.e. life or limb is in immediate jeopardy. Consent must be clear, unequivocal, voluntary and given specifically to CPS, as opposed to law enforcement. We will likely increase the use of court orders in aid of investigation.

One sentence sticks out. CPS will increase the use of court orders. That is a great idea. Instead of taking children first, and then going to court; CPS should actually investigate, then go to court for a removal. Of course, if this turns into a rubber stamp situation like DWI blood search warrants, then again there will be no justice.

More on the consent guidelines below the fold....

Continue reading "Texas CPS Memo "Quit violating the Constituion, or we could be sued!"" »

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 how the Court of Criminal Appeals 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 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.

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.

Deferred adjudication is a type of probation that does not result in a final conviction. For example, in Kaufman County many defendants received plea bargain offers of deferred adjudication probation for misdemeanor marijuana cases, usually for a period of 6-12 months.

In order to accept a deferred adjudication the defendant pleads guilty. However, the judge will state that she is "withholding a finding of guilt" even though she has enough evidence (your guilty plea) to find you guilty.

If these defendants successfully complete probation, then they are never convicted of possession. Avoiding a final conviction has many advantages. These defendants would lose their college financial aid eligibility with a drug conviction. However, there are some common misconceptions about the benefits of deferred.

Deferred Adjudication does NOT mean a charge will not be on your record
Probably the biggest myth about deferred is that the case will not be on your record. I receive many phone calls from individuals who accepted and completed deferred probation only to find out that the case shows up on background checks. Despite having no conviction these individuals may be prevented from receiving professional licenses, or employment.

Completing a deferred probation does not keep private background check companies from sharing the information about your probation. You can not unring that bell. Once publicdata.com or knowX get the information, they will keep selling it. You can file a motion for non disclosure and seek restriction of this information. In an information age I find that an MFND will not always achieve the desired result.

Deferred cases can NOT be expunged
If your case is deferred you are not eligible to have that case expunged. Expunction in Texas is only for not guilty verdicts, and dismissals.
For more information on expunctions see Texas Expunctions 101.

Texas Deferred Reform
Many defendants accept deferred adjudication with a clear misunderstanding of the consequences. Deferred adjudication is supposed to be a second chance, a chance to keep one's record clean. Even worse, it is most often offered in the weakest of cases. I have no doubt many innocent defendants plead guilty to deferred to avoid the possiblilty of a conviction and/or jail time.

Google searching led me to deferredadjudication.org, a group that lobbies for the rights of those on, or who have completed deferred probation. Texans who compete deferred deserve a fresh start. Ask you state rep to support reforms for deferred adjudication.

A reader wants to know about "official oppression." Texas does have a law against official oppression. That sounds better than it is. Prosecutions are extremely rare. I've never seen one.

What is OO? If the police pull you over and offer to let you go for sexual favors. Or if the game warden illegally keeps you from voting.

It doesn't have to involve law enforcement, just a "public servant acting under color of his office." From the penal code.

§ 39.03. Official Oppression

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

One reason I offer free consultations is to educate the public about the criminal justice system. If you hire me or not I want you to know what to expect and what your options are.

Unfortunately, education also includes breaking bad news to potential clients. I have had a few inquiries about appeals only to inform the defendant and/or the defendant's family that there will be no appeal because deadlines have been missed.

To avoid this in the future here is a quick guide to state criminal appeal deadlines.

You Must File A Noitce Of Appeal Within 30 Days Of Sentencing
Ok. To keep this simple, hire an appellate attorney as soon as possible. If you are remotely considering appealing your case quit reading this and find a criminal defense lawyer.
If you really want to know the law then keep reading.

What is the law?
From the Texas Rules of Appellate Procedure (yes the initials are TRAP)-

26.2 Criminal Cases. The notice of appeal must be filed: (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

30 days from sentencing
A plea of guilty, or a guilty verdict from a judge or jury alone does not start the deadline for appeal. The important date is when sentence is imposed. Many cases, including most plea bargains and misdemeanor cases, will include sentencing on the same day as the verdict. Some cases will include a separate sentencing hearing, or sentencing will be put off until a future date to let the jury have a break.

Motion For New Trial
The deadline for appeals may be extended if a motion for new trial is timely filed. What is a Motion for New Trial? Again, quit reading this and find an appellate attorney.

From TRAP-
RULE 21. NEW TRIALS IN CRIMINAL CASES

21.1 Definition.
(a) New trial means the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt.
21.2 When Motion for New Trial Required. A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record....
21.4 Time to File and Amend Motion.
(a) To file. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.
(b) To amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

Unfortunately, some defendants are sentenced and begin probation or incarceration without knowledge of this deadline. Your trial attorney should make you aware that you have 30 days to file an appeal. If she doesn't and you miss this deadline you can still file a Writ of Habeas Corpus (for ineffective assistance, inter alia). However, Writs are much more limited than appeals.

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

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

Table of Contents/ Chapter 1- Introduction

Chapter 2 Basic Principles of Radar Speed Measurement

Chapter 3 Legal Considerations

Chapter 4 Additional Considerations

Annexes (Graphs etc)

Every holiday in the summer the Dallas media sounds the alarm on boating fatalities, and/or drinking and boating. The dangers are real, don't get wasted and drive a boat. Bring life preservers etc. However, like most local TV news the fear is exploited far beyond the reality.

Example headline from DMN- Texas Leads Nation In Boating Fatalities.

That is a true statement. Last year, Texas led the nation in boating related fatalities with 52. Texas Parks and Wildlife estimates that 1/3 of all boating accidents "involve" alcohol (not caused, mind you). Texas also has the most miles of inland water of any other state. Not even the Land of 1,000 Lakes compares to Texas. In perspective, Texas is a safe place to boat.

What is the law on BWI?

§ 49.06. BOATING WHILE INTOXICATED. (a) A person
commits an offense if the person is intoxicated while operating a
watercraft.
(b) Except as provided by Section 49.09, an offense under
this section is a Class B misdemeanor, with a minimum term of
confinement of 72 hours.

§ 31.124. INSPECTION OF VESSELS. (a) In order to enforce the provisions of this chapter, an enforcement officer may stop and board any vessel subject to this chapter and may inspect the boat to determine compliance with applicable provisions.

I've found that few Texans are aware of the Texas Bill of Rights. It contains many similar provisions to the US Constitution. In theory, these provisions could provide more protection than the US Constitution. In practice, not always.

Article 1 - BILL OF RIGHTS
Section 10 - RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. (Amended Nov. 5, 1918.)

Want to compare the US, Texas, and UN Bill of Rights?

Texas prosecutors and the Fort Worth police are planning to celebrate July 4th by mocking the freedom our country was founded on. It's another holiday DWI "no refusal" party and you're invited.

To celebrate the desecration of our Bill of Rights, here is an FAQ on DWI blood draw warrants.

What is a "no refusal" blood draw warrant?
If a DWI suspect refuses to give a breath sample officers will get a warrant to take the suspects blood by force.

What's wrong with that?
Where to start? First, there are no protections for DWI suspects. No due process. No right to counsel. The legislature never approved blood warrants. They are judicial activism. Finally, prosecutors seek to hide this practice from the public.

There is no right to counsel?
Our courts have held that judges, cops, and prosecutors can conspire to take your bodily fluid and you have no right to counsel.

What is the procedure?
Prosecutors line up cooperative judges to rubber stamp fill in the blank warrants that are faxed in by police. (Yes, they really use fill in the blank warrants).

Do these really violate the Constitution?
Sure. Here is your Texas Constitution-

In all criminal prosecutions the accused shall... not be compelled to give
evidence against himself

Blood would seem to be evidence in a DWI case. Forcing you to give meets most definitions of "compelling". Luckily, our prosecutor friendly appeals courts have held that "evidence" doesn't really mean "evidence." "Evidence" means testimony. Obviously.

How Do They Violate State Law?
You don't need a law degree to understand how forced blood draws violate Texas law.

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

How is this judicial activism?
The law and our Constitution forbid these forced blood draws. Texas prosecutors could have lobbied the legislature to pass a law and amend the Texas Constitution to allow these blood draws. Instead, prosecutor made an end run around the law and got pro-State judges to create new law.

What if you refuse to allow the officer's to take your blood?
As you would expect, this process born from tyranny, ends with police brutality. The police hold you down while a needle is stuck in your arm. Assaulting suspects to steal their blood is un-American and degrades the criminal justice system. The more we "get tough" on DWI, the more we treat DWI suspects like GITMO detainees.

How can I learn more?
You can't. Prosecutors love to brag about these forced blood draws on their message board. However, they will routinely fight open records request to disclose the details of this practice.

Great news! The Court of Criminal Appeals is tabling their decision to delete the special rule of attorney client privilege in criminal cases. alternative.

From Texas Lawyer

The Texas Court of Criminal Appeals has defused a heated debate that has raged in blogs and e-mails to CCA judges over a proposal to eliminate a special rule of privilege in criminal cases. CCA Judge Cathy Cochran says the state's highest criminal court unanimously decided June 16 to defer the proposed deletion of Texas Rule of Evidence 503(b)(2) at least six months to allow ample opportunity for all interested parties to draft a proposed substitute for that rule or to draft a rule or statute to govern the attorney work-product doctrine....

On June 6, Kaufman criminal-defense solo Robert Guest sounded the alarm about the CCA's plans to eliminate Rule 503(b)(2) on his blog, www.dallascriminaldefenselawyer.com. "This special rule has protected Texans since 1856. There is no reason to change it," Guest wrote.

In his posting Guest provided the e-mail addresses of six CCA judges and urged his readers to send comments on the proposed rule change.

TDCLA also e-mailed a message written by Hampton to all members of the association, urging the criminal-defense bar to e-mail or write the CCA judges and tell them not to change the rule. "Tell them to leave it alone," Hampton writes in the message, which also provides the e-mail addresses of six CCA judges.

Cochran estimates that she received as many as 50 e-mails from opponents of the proposal to eliminate Rule 503(b)(2). "Nobody had a clue that this would be controversial," she says.

But Guest says, "Deleting 503(b)(2) is a solution looking for a problem. It will further erode what little protections defendants have in Texas."

You did it! Thanks to Grits, The Agitator, Ellis County Observer and others who picked up the story. The public came through and sent over 50 emails to Judge Cochran. This internet activism has at least postponed the repeal of 503(b)(2) and may be enough to save it. Now we just have to work to draft a new rule, or convince COCA to actually keep and apply the old rule.

I'll have more on this later. I'm packing for Rusty Duncan, and I have a ticket trial tomorrow before I can leave for SA.

No person shall ever be imprisoned for debt. Texas Constitution Article I Section 18

A tragic death in Tarrant County highlights the need to reform Texas traffic ticket laws. From CBS 11 news-

Ten days into serving her sentence at the Tarrant County Jail, a Fort Worth woman died.

Police say Adrienne Lemons was serving time for unpaid traffic tickets. The 35-year-old was rushed to John Peter Smith Hospital on June 13, where she later died. Lemons leaves behind a 3-year-old child.

Lemons' family said she was not receiving the medication she needed for a serious medical condition.

In Texas traffic tickets do not contain jail as a possible punishment. No judge can sentence a traffic ticket defendant to any period of jail time. Nevertheless thousands of Texans are jailed annualy over traffic violations. How is this possible?

Two ways. The first is when a defendant does not appear at this traffic ticket court date and a failure to appear/warrant is issued. Second, failing to pay fines can lead to a warrant for the payment of those fines.

These unjust policies reflect the truth about Texas traffic enforcement. Tickets are taxes and local government will incarcerate to maximize revenue. Talk about public safety is good PR. However, the truth is that county jails in Texas have become debtors prisons, and our police are human repo men for local governments.

Like other unjust policies this has a disparate impact on the poor. Ticket defendants who can not afford an attorney or the prohibitive ticket fines have no choice but to "sit out" their fines in the county jail.

Contradictory Supreme Court rulings allow Texas police to arrest for traffic offenses, and allows the State to deny court appointed counsel to the indigent.

Texas needs to reform this system before another innocent person dies in jail. First, we need to end the practice of incarceration for failure to pay ticket fines. We do not allow the government to incarcerate for failure to pay other taxes (property, sales etc) why should ticket taxes be different. Texas already has the ability to suspend your driver's license for non payment.

Second, if Texans decide that some traffic offenses (driving with no license etc) should require jail time as a possible punishment the we need to require court appointed counsel in those cases.

Such a system would have prevented Ms. Lemon's death, and prevented the fake ticket scandal in Dallas. Government greed has already cost one life. No one should be imprisoned for debt. Traffic tickets should not be a death sentence.

Appellate court decisions do not get much MSM coverage. As a public service I will try and break down recent Texas appellate court cases for the non attorney. (This process is made much easier by TCDLA SDR report).

I'm often hard on appellate courts for making decisions I disagree with. However, I want to start this section with some great appellate decisions.

Green v. State, 2008 WL 1822393 (Tex.App.-Waco Apr 23, 2008)

Facts- Cop searches defendants car for weapons. Cop has no warrant or probable cause. Cop sights ubiquitous officer safety (OS) justification. Cop let defendant re enter car, after Cop had removed defendant from car.

Holding- Search is illegal. OS is a legitimate reason to search for weapons. However, there has to a real concern for OS. Cop wouldn't have let defendant get back in a car if Cop thought defendant had a weapon in car.

I say- "Officer safety" is appearing in more and more police reports. Word has spread of among law enforcement that claiming OS will justify almost any search for weapons (drugs). I'm glad to see the court recognizing that OS is being abused to search for dope.

Korell v. State, 2008 WL 1827446 (Tex.App.-Austin Apr 24, 2008)

Facts- Defendant went along with Friend to a buy meth. Defendant helped Friend contact meth dealer. Defendant knew Friend was buying meth, and knew met was present at meth dealer's house. Defendant doesn't touch or buy any meth. Defendant is charged with possession of meth.

Holding-Knowing and/or helping with a drug deal does not make one guilty of possession. The right charge would have been delivery. Being guilty of delivery does not make one guilty of possession.

I say- It's great to see the court reject a drug conviction. It is not too much to require the state charge the right crime. Besides, we already have thousands of meth people in jail already. Way to go Austin!

King v. State, 2008 WL 1744026 (Tex.App.-Amarillo Apr 16, 2008)

Facts- Defendant had $30,000 in trunk. Police arrest Defendant for money laundering because he has a lot of cash. There is NO evidence that the money was proceeds from illegal activity.

Holding-Convinction overturned. Without any evidence of illegal activity there can not be any money laundering.

I say- Another great ruling! Because of the War on Drugs many police treat large sums of cash as contraband. It is great to see the court recognize that transporting money, even a lot of money, does not make one a criminal.

Orand v. State, 2008 WL 1700149 (Tex.App.-Fort Worth Apr 10, 2008)
Facts- Defendant is indicted for Indecency. ELEVEN years later, Defendant learns of charges and turns himself in.

Holding- Defendants speedy trial rights were violated.

I say- Old cases are hard to prosecute. Indecency charges are hard to defend. In this case the court recognized that it is impossible to have a fair trial on such a charge after more than a decade has passed since indictment.

Padilla v. State, 2008 WL 1746729 (Tex.App.-Eastland Apr 17, 2008)

Holding- Miniature statute of baby Jesus was found to be a "deadly weapon."

I say- I have nothing to add.

These are decisions Texans can feel good about (except maybe the last one). Texas courts have made the criminal justice system better by getting rid of bad convictions. Decisions like these keep us all safe by protecting the innocent and holding the government to a higher standard. Well done.

RACIAL PROFILING PROHIBITED. A peace officer may not engage in racial profiling.

This begs the question- What is racial profiling?

From the Code of Criminal Procedure-

law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity.

Texas racial profiling law also requires each law enforcement agency to keep statistics for each officer. The number of arrests, searches, tickets, and warnings are broken down by the race of the suspect. It is then up to the public to examine this information to discover any possible profiling.

Here are the RP stats for Kaufman County DPS troopers.

How To Order Racial Profiling Stats For Your County
Very simple process. Just send an email to pio@txdps.state.tx.us, and request racial profiling statistics for all officers in your county. The information comes in excel, so you shouldn't have to pay anything.

More How-To Open Records Posts
Open Records 101
Open Records 102

The Court of Criminal Appeals is moving to abolish the special rule of criminal attorney-client privilege. This would leave defendants with a much weaker protection currently only used in civil cases.

Here is the law COCA is seeking to abolish-
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.

The Court of Criminal Appeals has ruled (see their proposal here) that this protection will be deleted on September 1st, 2008. COCA has made this decision without any public input. The Texas Criminal Defense Lawyers Association was only notified of this decision after it was made.

This special rule has protected Texans since 1856. There is no reason to change it. This letter by Federal Public Defender Richard Andersondocuments the history and case law surrounding 503(b)(2).

You Can Help
Let these judges know that you do not want 503(b)(2) deleted. The deadline for public comments on this proposal is June 30th. You are the public, and I need you to comment.

Here is their contact information-
Judge Cathy Cochran, mailto:cathy.cochran@cca.courts.state.tx.us
Judge Tom Price, tom.price@cca.courts.state.tx.us
Judge Cheryl Johnson, cheryl.johnson@cca.courts.state.tx.us
Judge Larry Meyers, larry.meyers@cca.courts.state.tx.us
Judge Barbara Hervey, barbara.hervey@cca.courts.state.tx.us
Judge Charles Holcomb, charles.holcomb@cca.courts.state.tx.us

Or you may snail mail your letters to individual judges at:
Texas Court of Criminal Appeals, P.O. Box 12308, Capitol Station, Austin Texas 78711

It is bad enough that appellate judges rewrite the Constitution to destroy your rights, now they want to rewrite the rules of evidence.

Continue reading "Help Save Attorney Client Privilege In Texas" »

Dallas Morning News has yet another story on the proliferation of DWI blood warrants. This time the Dallas Police are joining the bandwagon of cities who have chosen to circumvent the law and violate your right to refuse blood testing.

What about the right to counsel? Will these DWI suspects have the right to consult an attorney before the Dallas Police forcefully remove their blood?

Texas Bill of Rights
From your Texas Constitution- Article 1 Section 10.

In all criminal prosecutions the accused shall have the right of being heard by counsel,

DWI Blood Draws
Does Article I Section apply to DWI suspects? After all, the Dallas police want to detain you, interrogate you, ask you to perform useless physical challenges, arrest you, ask for a breath sample, and finally hold you down and forcefully extract your blood. That sounds like a good time for a defense attorney to intervene.

Unfortunately, the right to counsel for DWI suspects was repealed long ago. Here is a summary of the sorry state of RTC law from the Texas prosecutor's DWI manual, DWI Prosecution and Investigation by TDCAA.

An officer does not have to give Miranda warnings to a suspect before asking for a breath sample. A suspect does not have the right to counsel before deciding whether to give a sample. An invocation of the suspect's right to an attorney will not later exclude evidence of a refusal to take a breath test.

How was the right to counsel repealed? Conservative Judicial Activism. (Due Process also applies to this discussion. However, that is outside the scope of this post.)

McCambridge v. State
The Court of Criminal Appeals abated the right to counsel for DWI suspects in the early 1990s. A string of DWI cases allowed COCA to rewrite the Texas Constitution in order to save DWI convictions. A good example is McCambridge v. State (778 S.W. 2d 70).

In McCambridge the defendant was found guilty of DWI. On appeal McCambridge argued that he should have had the right to speak with an attorney before deciding whether or not to give a breath sample.

How would COCA save this DWI conviction that clearly violates the Texas Bill of Rights?

Rights under Article 1 Section 10 only apply during a "criminal prosecutions." COCA held that DWI suspects are not being prosecuted. Ergo, they have no rights.

Only in a DWI case would such tortured logic be allowed. COCA won't even stoop this low to save a drug case. For example, if the police had a warrant to search your house for drugs they could not force you to show them where the drugs are. If you asked for an attorney while they were searched they would not continue to question you.

The Dissenting opinion sums up the McCambridge decision well.

Today... a lackluster majority of this Court declines to hold that under Art. I, § 10, of the Texas Constitution, the "Rights of the Accused in Criminal Prosecutions" clause, 1 an individual lawfully arrested for allegedly committing the offense of driving while intoxicated has the right to the assistance of counsel from that point forward; they opt instead to hold that such a person has the right to the assistance of counsel only after formal criminal charges have been filed, which act apparently lies in the discretion of the police as to just when that must occur.

For unknown reasons, a person lawfully arrested in Texas for driving while intoxicated is to be treated differently from a person who has been lawfully arrested for committing some other criminal wrong.

DWI = Not A Criminal Prosecution?
This arbitrary decision by COCA has little basis in law enforcement reality. Any assistant DA or criminal defense lawyer can attest that every DWI arrest is indeed a criminal prosecution. Every facet of law enforcement works in concert to arrest and convict dwi suspects. The police work under the direction of prosecutors, who then conspire with cooperative judges, who then sign "fill in the blank" search warrants. Under any definition (besides COCA's) that is clearly a criminal prosecution. But don't take my word for it. From DMN-

Deputy Chief Tom Lawrence said the effort is "the next step in what we are ultimately trying to achieve when we make an arrest for driving while intoxicated. That is the successful prosecution of these cases."

A reader asked me what the age of consent is in Texas. Great question. Let me begin by stating there is no section of the Texas Penal Code that defines "age of consent." Rather, you have to begin in the Sexual Assault Provisions of the TPC.

§ 22.011. SEXUAL ASSAULT. (a) A person commits an offense if the person: (2) intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of a child by any means; (B) causes the penetration of the mouth of a child by the sexual organ of the actor; (C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or (E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

This begs the question- What is a child?

(c) In this section:
(1) "Child" means a person younger than 17 years of age
who is not the spouse of the actor.

Ok. So performing any of the acitivties under (a)(2)(A)-(E) with anyone under 17 (and not your spouse) is illegal in Texas. Doesn't that make many high school students felons? No. Texas has a "Romeo and Juliet" law for minors who are within 3 years of age.

(e) It is an affirmative defense to prosecution under Subsection (a)(2) that: (1) the actor was not more than three years older than the victim and at the time of the offense: (A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or (B) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and (2) the victim: (A) was a child of 14 years of age or older; and (B) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

So, to answer- the age of consent in Texas is 17. However, if you are 17, the AOC could be 14, as long as you meet the affirmative defense requirements. However, I would recommend you consult with your attorney before choosing any course of conduct.

When I use a word it means just what I choose it to mean, neither more nor less.' - Humpty Dumpty, Through the Looking Glass

Most of the rhetoric surrounding DWI includes statements about drunk drivers. For example, Texas MADD has a "campaign to end drunk driving." No one supports drunk driving which makes the label great to stifle debate.

The reality is that Texas DWI law is not aimed at drunk drivers. Texas law forbids driving while "intoxicated". Ask most people what intoxication means, and they will say "drunk". Webster defines intoxicated as "affected by or as if by alcohol : drunk." Proving a driver was drunk would be a high standard and lead to less convictions for DWI. To make convictions easier the Texas Legislature simply redefined intoxicated for the purpose of DWI. From the Texas Penal Code- Intoxication means-

not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

I'll save .08 for a future discussion. Let's start with "loss of normal use." If an officer states that you have lost the normal use of your faculties what does that imply? That the officer actually knows what your normal physical mental or faculties are. The reality is that the police have no idea what you act like normally. Most will readily admit to this fact during cross examination. How do officers swear to something they do not know is true? Training!

Since the State of Texas has invented a new definition for intoxication, they can also simply invent evidence that shows you meet their new definition. This explains the bizarre laundry list of driving behaviors that are taught to be evidence of intoxication.

Field sobriety testing is another great example. SFSTs were designed to detect specific BAC levels (which they don't). SFST were never designed to detect "intoxication." However, officers are taught to use SFST's as evidence you have lost your mental and physical faculties.

How can that be? Made up definitions, allow for made up evidence. DWI laws are written to maximize convictions, not to reflect reality. No one support drunk drivers. If only convicting the innocent carried the same stigma.

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'

Here is an article I wrote for the Ellis County Press.

What is habeas corpus?

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." - United State Constitution Art. 1, Sec. 9

A Writ of Habeas Corpus (Writ or WOHC) is one of your most basic and fundamental protections against tyranny. Habeas corpus is a Latin phrase that roughly translates to "show me the body." WOHC originated in England as a check on the king’s power.

If the king locked you up you would file a writ of habeas corpus and ask the king to "show you the body," or tell you why you are incarcerated. Today writs of habeas corpus are commonly used in Texas criminal cases.

Writs are filed to challenge the state’s restraint on your liberty (incarceration, probation etc). Without writs the State could throw you in the county jail for no reason forever. Writs prevent such fundamental abuses of the criminal justice system.

Here is a quick overview on how writs protect your rights. You are driving home from work and the police pull you over for speeding. You have a marijuana joint in your pocket. Overcome with guilt you confess to the police and ask for forgiveness. The cops arrests you and take you to the Ellis County Detention Center. Bail is set at $50,000,000.

Bail
Writs are commonly used to get bail lowered, or get bail set if bail has been denied.

Any criminal defense lawyer who takes court appointments (indigent defense) will spend a lot of time on bail writs.

A bail writ states that a defendant is being held in the county jail, convicted of nothing, yet is denied the ability to leave the jail. A writ challenge this restraint on liberty.

Challenging A Prosecution
After getting bail lowered to $500 you are released. Three weeks later the State files a marijuana case against you. You have a jury trial and your brilliant defense lawyer helps win an acquittal (not guilty).

Ten years later the State files another misdemeanor case against you for the same marijuana charge. Again, WOHC to the rescue. Writs are also used to challenge a fundamentally flawed prosecution. For example, cases barred by limitations (too old) or double jeopardy.

Post Trial
If you are found guilty in a case and wish to challenge the conviction the usual route is an appeal. However, some constitutional and jurisdictional issues can be raised with a WOHC. Any error raised in an appeal cannot be later raised in a writ. One common claim in post trial writs- "ineffective assistance of counsel."

Sitemeter makes it easy to browse the Google searches of my readers. Here are some recent search terms that led readers to DCDLB (formerly IWTS).

where to buy marijuana in dallas?
Reader, no one in America buys, sells, or uses marijuana. Our dear leaders in the federal government have declared that marijuana is verboten. Americans would never violate our divinely inspired federal drugs laws. I would be shocked if marijuana is for sale in Dallas, shocked!

Ok, all kidding aside. The hundreds of pot cases pending in Dallas County tell me that buying marijuana in Big D can't be that difficult. Perhaps a better question is "Where can't you buy marijuana in Dallas?"

Just so you know reader, Possessing or Selling Marijuana is illegal in Texas.!! Don't be like George W. Bush, Newt Gingrich, Barack Obama, Bill Clinton, The Beatles, Steve Jobs, or the new Governor of New York- Just say no!!

texas laws on possession of meth
In Texas possession of methamphetamine is at least a State Jail felony (under 1 gram). The crime, Possession of a Controlled Substance carries with it a sentence of 6 months to 2 years in State Jail (probation may be an option, or even required).

As a rule- jail in Texas sucks. However, State Jail is worse than your normal prison. Why? Unlike TDC (Texas Department of Corrections) State Jail has no "good time" credit, you have to serve your sentence day for day. So the inmates have no incentive to behave in State Jail. Ergo, they don't.

Possession of prescription amphetamines (Adderall) is a Class A misdemeanor.

alr hearing got dismissed does this help me for my dui case
It depends on why your ALR case was dismissed. If the judge found there was no probable cause to stop or arrest that will help your attorney defend your DWI case. If the case was dismissed because the right witness did not show up at the ALR hearing, then not so much. Either way, in Texas an ALR win does not prevent the State from filing a DWI case.

In Texas if you are not eligible to have an arrest expunged, you may be eligible for a Motion for Non Disclosure. I received many phone calls from people looking to clean up their record. However, expunctions are a very limited option. For most, a MFND is the only option available.

What is a Motion for Non Disclosure?
An MFND allows an individual to deny arrest or prosecution for which public information exists unless they are being prosecuted for a subsequent offense.

Who is eligible for a MFND?
A person who has pled guilty or no contest, received deferred adjudication, and has been successfully discharged from probation (the charges have been dismissed. However, even then some people are not eligible.

There is also a waiting period between 0-5 years depending on the offense (h/t Mark).

Who is not eligible?
Sex offenders, those who are convicted of another offense, kidnappers, murderers, family violence offenders, et al.

What is the process?
Call an attorney. Basically a petition is filed and a hearing is held to determine if a MFND is warranted.

What happens if the court grants it?
A whole slew of Texas agencies are forbidden from disclosing the information to the public. The records are eventually sealed by DPS.

Wait a minute, if my information is already on PublicData.com or another background check site, how does an MFND help?
Good question. After an MFND is granted these entities can be fined for releasing the information.

The Texas Tax Code requires our State comptroller to produce tax stamps for controlled substances. Theoretically, you buy these stamps and then place them on your bag of weed, meth, or crack.

How much are these stamps? $200 per gram for eachcontrolled substance except for pot. Pot is a much more reasonable $3.50 per gram.

For some reason Texas laws refer to marijuana as marihuana. Where did they get that spelling?

Does the comptroller just fax buyer information to the cops? They are not supporsed to. It is illegal (class B misdemeanor) for the comptroller to release a buyer's information. However, I am not sure the State would be interested in prosecuting such a case.

Not A Defense
If you do buy these stamps, your drugs are not legal. From the tax code-

Nothing in this chapter provides a defense or affirmative defense to, exception to,
or immunity from prosecution under the penal laws of this state relating to controlled substances, counterfeit substances, simulated controlled substances, or marihuana.

These taxes are obviously not meant to generate revenue. They are merely another tool to take money from defendants. The real crime is the sales tax Texas loses on the daily marihuana sales in our state. Instead of wasting millions on incarceration we should be generating revenue.

If you are pulled over in Texas for a DWI, you have very few rights. You can be arrested with only a police officer's subjective opinion as evidence. You do not have the right to an attorney prior to giving a breath sample, or even while being held down and forced to give a blood sample. Then you are tried by jurors inundated by MADD propadanda.

What right do you have in Texas? You have the "right" to give a blood sample.

From the Transportation Code-

§ 724.019. ADDITIONAL ANALYSIS BY REQUEST. (a) A
person who submits to the taking of a specimen of breath, blood,
urine, or another bodily substance at the request or order of a
peace officer may, on request and within a reasonable time not to
exceed two hours after the arrest, have a physician, qualified
technician, chemist, or registered professional nurse selected by
the person take for analysis an additional specimen of the person's
blood.
(b) The person shall be allowed a reasonable opportunity to
contact a person specified by Subsection (a).
(c) A peace officer or law enforcement agency is not
required to transport for testing a person who requests that a blood
specimen be taken under this section.
(d) The failure or inability to obtain an additional
specimen or analysis under this section does not preclude the
admission of evidence relating to the analysis of the specimen
taken at the request or order of the peace officer.
(e) A peace officer, another person acting for or on behalf
of the state, or a law enforcement agency is not liable for damages
arising from a person's request to have a blood specimen taken.

This is why freedom does not come from government, but from our Creator. When the government gives you freedom they do a half ass job. The State is interested in convictions, not due process.

What happens if the police do not tell you about this "right" after you give a breath test?
Nothing. Police never tell defendants about this provision.

What if you need to go to the hospital for the test?
You are out of luck. The Police do not have to transport you anywhere. Good luck getting your family doctor to come to the county jail at 2AM.

What happens if you ask for another sample but the doctor gets there after 2 hours?
Nothing. The State's original sample is admissable, and they can deny the doctor from giving you a sample. After all, you only have two hours to get re tested.

DWI makes a farce out of the Bill of Rights. The more freedom we give up, the more innocent people we convict. We should replace these phony "rights" with some new basic freedoms. Let us try- the right to not give evidence against yourself, the right be free from unreasonable search and seizure, and the right to counsel for starters.

Texas- Autonomous sex threatens us all.
Texas argued that the State was “discouraging prurient interests in autonomous sex
and the pursuit of sexual gratification unrelated to procreation and prohibiting
the commercial sale of sex.”

Texans- Do we want our police working to protect procreation? Last time I checked there seemed to be plenty of Texans around. I'm not sure how this law supported procreation. Are Texans choosing not to have children because of sex toys? If so, I don't think we should encourage them to have kids.

I am embarrassed for the lawyer the State sends to defend this idiocy. The prostitution angle was a creative reach by the State. However, it was summarily rejected.

The courts cite the 14th Amendment as the source of an invididuals right to privacy. Privacy rights should come from the 10th Amendment. The language of 10 is clear. However, that line of thinking has never been embraced.

You can't legislate morality. Really, you can't.
The judges also ruled that promoting morality is not a legitimate reason to criminalize activity. From the decision

The State’s primary justifications for the statute are “morality based.”
...These interests in “public morality” cannot constitutionally sustain
the statute after Lawrence.To uphold the statute would be to ignore the
holding in Lawrence and allow the government to burden consensual private
intimate conduct simply by deeming it morally offensive.
The fact that the governing majority in a State has
traditionally viewed a particular practce as immoral is not a sufficient
reason for upholding law prohibiting the practice.

H/T to the TDCAA message board for posting this ruling.

Update- The future
I consulted with my appellate expert. He believes this case will be ruled on again by the 5th Circuit "en banc" (where the entire court hears an opinion, as opposed to a 3 judge panel). He also believes that this case will be heard by SCOTUS.

This is part of the "implied consent" chapter of the Texas Trasnportation Code. Unless you are in a car accident with serious injuries (724.012b) this Prohibition on Taking Specimen applies. Notice how their is now exception for fill in the blank search warrants signed by "cooperative judges."

Now, pretend you are on the Court of Criminal Appeals. Here are the facts.

A defendant has been arrested for DWI and refused to give a blood sample. There has been no injury accident. Officer Friendly gets a warrant and forcibly removes defendant's blood. Defendants argues that this search violates 724.013 and the 4th Amendment and should be suppressed.

COCA Ruling- To dissalow these forced blood draws "results in giving DWI suspects more protection than other criminal suspects---an absurd result."

That sentence says a lot about COCA, the 4th Amendment and criminal justice in Texas. COCA judges find it absurd to give DWI suspects more protection even if the law is clear and unambiguous. Absurd- their word, not mine.

Judicial Activism Cuts Both Ways
Conservatives often decry "judicial activism" for issues like gay marriage.Yet this police state judicial activism is ignored by the same conservative pundits.

COCA ignored the plain meaning of the statute. The legislature could have put in an exception in the law for warrants, and didn't. So, an appellate court made new law and ignored the "strict constructionism" so often praised in conservative circles.

Undettered, the State of Texas still enforces a bizarre ban on vibrators. Possessing six or more "obscene devices" is a state jail felony, with a minimum sentence of 6 months in jail. Like most stupid laws, this one is rarely enforced. Only in Texas could selling "obscene devices" carrying the same sentence as Burglary of a Building.

If Texas can not outlaw certain sexual activity, it at least wants to tax it. Last year the legislature passed a $5 tax on strip club patrons to fund sexual assault prevention. The idea being that strip club patrons are somehow responsible for sexual assaults. The only assaults occuring at strip clubs are on the patron's credit cards.

Swinging in Duncanville
Currently, the Dallas media is in a tizzy over a swingers club at a private residence in Duncanville. The City of Duncanville recently passed an ordinance to shut the club down even though no illegal activity has ever taken place.

The new ordinance makes it illegal to operate a "sex club." What is a sex club? "Any premise, person or organization that is presented, advertised or provides notification to the public that it is a swinger's club, an adult encounter group or center or that provides an opportunity or an invitation to engage in or view sexual activity, stimulation or gratification."

I would now like to announce that the Duncanville Police Station provides an opportunity to engage or view sexual activity and stimulation. According to statute I have now made the DPD station a sex club.

Osama Bin Laden or Ron Jeremy ?
Regulating morality is not limited to intrusive state laws. While questioning the new Attorney General nominee Michael Mukasey, Utah Senator Orrin Hatch called for an increase in "mainstream obscenity" prosecutions.

I have read the Constitution and I can not find any provision for the federal government to regulate porno. To the contrary the First Amendment would seem to protect mainstream obscenity. The Supreme Court disagrees and has set confusing and nearly unenforcable rules for criminalizng obscenity. Senator Hatch is merely continuing the recent trend of using the Attorney General's office to destroy Constitutional protections.

However, in an age of terrorism fighting "mainstream obscenity" is a dangerous waste of law enforcement resources. Hatch calls for "more FBI agents and prosecutors" dedicated to fighting the porno threat. Remember opportunity costs. I do not take off my shoes at the airport because porn stars are trying to kill us.

There is no morality in government, merely hypocrisy. If recent history holds true I predict that Orrin Hatch will soon be arrested for selling child pornography.

Prosecuting Inflatable Sheep
I only prosecuted one case involving promotion of obscene materials. The defendant pulled up to a 7-11 parking lot and displayed a van full of various obscene items for sale. A concerned citizen called and the defendant was arrested.

Our office had a great laugh at the list of contraband, including inflatable sheep (really, no really)and something called "the torpedo", inter alia. This defendant could not make bail and served 20+ days in jail.

The office had some debate on prosecuting this case. The popular opinion being that you shouldn't sell adult items out of a van where children could see it. However, Texas law does not allow retail stores to sell inflatable sheep so the market responds with the mobile seller.

Hatch, Paul, and Freedom
Adults should be free to make their own decisions when it comes to mainstream obscentiy and obscene devices. Sending police into bust up adult bookstores is an embarassing waste of tax dollars. Just because Orrin Hatch does not like porn does not mean we need to use the FBI to arrest those who sell it. Mr. Hatch should simply quit buying porn if it upsets him so much. A boycott is always a better approach than a SWAT team.

Only one candidate stands up for the right of adults to live their lives without federal morality police watching every move. Check out John Stossel interviewing Ron Paul on prostitution, gay marriage, and drugs inter alia.

Expunction is the process of having records of arrest permanently hidden from public view. Failure to obliterate an expunged record is a class B misdemeanor. Yes, the law actually requires that expunged records be "obliterated."

If your record is expunged you can actually deny ever being arrested (unless you are on the stand in a criminal case).

Are you eligible for an expunction? That's a tough question. Call me and we'll talk about it. Here are some general rules for Texas expunctions.

Misdemeanor Expunctions- To expunge a misdemeanor you can not have received a final conviction OR received community supervision. Deferred adjudication cases can not be expunged. That's not all, you can not have any felony convictions in the 5 years prior to arrest and you can not have plead to another charge arising out of the same criminal offense.

Confused?

Here are some hypotheticals-

1. Quincy is arrested for Possession of Marijuana. Quincy pleads guilty and receives deferred adjudication probation for 12 months. Quincy completes probation and there is no finding of guilt.

Quincy wants to expunge his record of the POM arrest and case. Can he?

No. He was placed on probation. Even though it was deferred and no finding of guilt was entered.

2. Paris gets arrested for DWI. Paris reads this blog and refuses to take any field sobriety tests. The State drops the DWI and Paris pleads to "Obstructing a Highway" as part of a plea bargain. Paris wants to expunge the arrest for DWI?

Can she? Nope. The "Obstructing a Highway" case is out of the same criminal episode.

3. Finally, Morpheus is arrested for Assault Family Violence. A year earlier Morpheus pled guilty to Possession Of Methamphetamine and got 6 months in State Jail. Morpheus sets the Family Violence case for trial and it is dismissed when the victim does not show up.

Can Morpheus get the Assault Family Violence expunged? Nope. He has a felony conviction within 5 years of the Assault Family Violence.

As you can see, expunctions are not easy to get. However, expunctions have a little known relative the Motion for Non Disclosure that can be useful. We will discuss MFNDs in the future.