Dallas Criminal Defense Lawyer Blog

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 had a long standing ban on selling "obscene devices" (vibrators etc). Yesterday, the 5th circuit corut of appeals correctly ruled that statute is unconstitutional. The judges cited the Lawrenece (striking the Texas sodomy laws) case in their decision.

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.

The pace for getting rid of stupid laws is glacially slow. However, any criminal justice resources that were being wasted on "obscene device" prohibition can now be wasted on drug addicts.

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.

§ 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.

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.

Are there cops in your bedroom? Should there be? The State of Texas has long considered sex between adults just another area for regulation. Until 2003 consensual adult homosexual sex was a crime in the Lone Star State. Like most bad laws it was rarely enforced. The Supreme Court ruled that the law furthered no legitimate state interest.

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.

I routinely get phone calls on Expunctions. There seems to be a lot of bad information floating around so let's start with the basics.

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.