Dallas Criminal Defense Lawyer Blog

February 21, 2023

Fifth Circuit Applies New Supreme Court Precedent to Reverse Firearms Conviction

The right for Americans to keep and bear arms is a fundamental right that is protected by the Second Amendment to the U.S. Constitution. Although the right to bear arms is sacrosanct, there are exceptions and restrictions to gun ownership that have been upheld in the courts. Federal laws have been in effect for decades that prevent domestic violence offenders and respondents in valid protective orders from owning or possessing firearms. A Texas man’s recent challenge to a conviction under this law may result in a complete overhaul of these commonly used ownership restrictions for domestic violence prevention.

The defendant from the recently decided case was found to have firearms in his possession after a search warrant was issued for his residence in early 2021. The defendant had agreed in 2020 to a civil protective order preventing him from contacting or harassing an ex-girlfriend. Federal law prohibits persons subject to such protective orders from owning or possessing firearms. After the search, the defendant was arrested on federal charges and was ultimately convicted of the crimes as charged.

The defendant appealed his conviction, arguing that the federal law prohibiting him from firearm ownership was unconstitutional. Although the defendant’s constitutional arguments initially failed, the federal law on this issue changed when the U.S. Supreme Court decided New York State Rifle and Pistol Association v. Bruen in 2022. In Bruen, the highest federal court created a new framework for evaluating the constitutional validity of firearms restrictions. Under the Bruen standard, the government had an increased burden in demonstrating the constitutionality of gun regulation statutes.

February 10, 2023

Texas Appellate Court Addressed Victim’s Credibility in Child Sex Abuse Case

by Robert Guest

Cases of sexual assault and abuse, especially those involving children, hinge greatly on the perceived credibility of the victim and other witnesses. Because children are often coached into making statements to law enforcement and medical professionals that may incriminate a defendant, the credibility of alleged child victims, as well as their complaining family members, is often an important issue in sex abuse cases. The Texas Court of Criminal Appeal recently addressed a lower court’s ruling that had reversed a sexual assault conviction against a church organist, who allegedly sexually assaulted a small boy who he was entrusted to care for.

The defendant in the recently decided case was a member and organist at a church that was attended by the alleged victim and his family. After the child’s mother witnessed the boy performing a sexual act on a sibling and asked where he learned such a thing, she claimed her son told her that he was forced to perform sexual acts on the defendant several times in the past. After a police investigation and extensive interviews were completed, the defendant was arrested and charged with sexual abuse of a child.

As the case progressed toward a trial, the alleged victim’s family was divided into two camps. The victim’s mother and maternal grandmother believed the victim. Other family members, including the victim’s great-grandmother, who was highly regarded in the church, as well as cousins and other relatives, claimed that the victim’s mother manufactured the story and was a compulsive liar. Because of this division, the trial focused primarily on the credibility of the victim and his mother around the time the abuse was reported. During the trial, the prosecutor asked a police officer if he believed that the victim was lying when he was interviewed, and the officer responded no.

January 21, 2023

Texas Court of Criminal Appeals Reverses Appellate Court, Affirming Defendant’s Conviction for Failing to Provide Medical Care to Her Child

by Robert Guest

In a recent Texas criminal case, the State petitioned the Court of Criminal Appeals of Texas after a ruling from the Eleventh Court of Appeals found that the Appellant in a criminal case was entitled to a concurrent causation jury instruction, reversing in part a judgment by the trial court. The Appellant was convicted by a jury and sentenced to fifteen years’ imprisonment under Texas Penal Code § 22.04 for recklessly, by omission, causing serious bodily injury to her child and failing to protect her child from being struck against a hard surface by her husband and subsequently failing to provide medical care.

Facts of the Case

On June 29, 2013, the Appellant was in the kitchen of her family home in Denver City, Texas, when her husband began to choke and shout expletives at their youngest child. The couple’s older daughter testified that the Appellant subsequently entered the room and instructed her husband to “stop hurting the baby.” Later that night, the Appellant noticed that the youngest child was experiencing seizure-like symptoms and called her mother-in-law, who was a retired nurse, to ask for advice. The mother-in-law instructed the Appellant to give the youngest child a Tylenol and continue monitoring her. The next day, the child began to exhibit seizure-like symptoms again, so the couple decided to bring her to Covenant Hospital in Lubbock instead of the local hospital in Denver City. While the Appellant originally told investigators that they drove nearly an hour to Lubbock because they did not trust the doctors in Denver City, later testimony revealed the decision was made to avoid Child Protective Services (CPS).

At the hospital, it became apparent that the child’s injuries had resulted from non-accidental abuse, and the staff contacted CPS and the Lubbock Police Department to coordinate an investigation. Based on the police investigation and medical findings regarding the injury, both the parents were arrested and charged under Texas Penal Code § 22.04. At trial, the Appellant was convicted and sentenced to fifteen years’ imprisonment. On direct appeal, she raised two grounds for review: (1) the trial court erred when it refused to instruct the jury on concurrent causation, and (2) the evidence at trial was legally insufficient to support a conviction under § 22.04 of the Texas Penal Code. The appellate court sustained the Appellant’s first issue, reversing the judgment of the trial court. On the second issue, the appellate court ruled that the evidence presented at trial was sufficient, to find both Appellant’s omissions caused serious bodily injury to the child beyond a reasonable doubt.

January 11, 2023

Texas Appeals Court Overrules Defendant’s Appeal, Affirming Lower Court Decision in Drug Case

by Robert Guest

In a recent Texas drug case, the defendant appealed the trial court decision, arguing that his conviction was the result of law enforcement violating his Fourth Amendment rights, evidence that should have been suppressed, and ineffective defense counsel. The defendant was convicted of a gram or less of methamphetamine, a state jail felony. The trial court then sentenced him to state jail for 12 months.

Facts of the Case

Law enforcement officers were directed by a dispatcher to a location with reported shots fired. There, witnesses described the shooter as wearing a red shirt and blue jeans. They stated that the man was walking northbound, pointing in the direction they saw him walking. A police officer began driving in the direction they pointed, and after a block or two, spotted the defendant. He detained the defendant, patted him down, and after finding nothing, handcuffed him and put him in the back of the patrol car. Without probable cause to arrest the defendant, the officer was about to release him when he asked for consent to search the defendant’s person. The officer had not told the defendant he was free to go. After receiving verbal consent, the officer conducted the search, finding a small packet of white substance in the defendant’s pocket. After field testing it, it came back positive for methamphetamine, and the defendant was arrested. After the arrest, the substance was sent for laboratory testing and determined to be methamphetamine.

The Appeal

Following the trial, the defendant presented three issues for appeal. (1) law enforcement violated his Fourth Amendment right to be free from unreasonable search and seizure, (2) the evidence discovered from the unlawful search should have been suppressed or excluded from the trial, and (3) at trial, the defense counsel was ineffective by failing to file a motion to suppress the illegally obtained evidence and by failing to object to the introduction of the illegally obtained evidence. The appellate court found that the first two issues were not preserved for appeal as he never presented his complaint to the trial court and never asked the trial court to suppress or exclude the allegedly inadmissible evidence.

December 29, 2022

Defendant in Texas Drug Case Appeals Conviction, Arguing It Resulted from Violation of Discovery Rules, False Evidence, and Insufficient Evidence

by Robert Guest

In a recent Texas criminal case, the defendant appealed the trial court decision, arguing that his conviction was the result of discovery violations, and false evidence, and was based on insufficient evidence. The defendant was convicted of possession of a controlled substance in Penalty Group 2, in an amount greater than or equal to one gram but less than four grams. The trial court then sentenced him to six years of incarceration.

Facts of the Case

The defendant was arrested for possessing vape cartridges containing what law enforcement officers believed to be THC. Following his arrest, the officers sent the confiscated cartridges to a laboratory under contract with the State of Texas. Ultimately, evidence and testimony from members of the laboratory resulted in the successful conviction of the defendant by the State. In particular, the laboratory’s director, Kelly Wouters, played a vital role in the State’s case.

While Wouters testified as a surrogate witness for the work and analysis performed by other people in the laboratory, questioning by the State gave the impression that Wouters himself had performed certain aspects of the hands-on analysis and tasks. When pressed on the issue, Wouters stated that he was in charge of supervision for those tasks, though he admitted that he was not personally in a position to know if a worker was violating protocols. Additionally, Wouters attempted to establish through his testimony that he personally participated in the laboratory quality control measures when it came to the analysis of the evidence in this case. In fact, he was not present for the lab testing or the implementation of quality control measures when it came to the examination of evidence in this case. Additionally, the State did not identify the specific employees that conducted the laboratory analysis that Wouters claimed to be responsible for.

The defendant’s attorney emphasized the importance of the laboratory records to the State, but the existence of additional laboratory workers was revealed only just prior to the beginning of the trial and the State downplayed the role that those workers played in the testing process. Additionally, based on testimony by an expert witness called by the defendant, the 39-page laboratory packet provided by the State was “grossly insufficient” and “significantly lacking” when it came to making meaningful conclusions from the data. Finally, the State’s laboratory expert testified that due to chemical tendencies, the content within the pods would convert to the illegal THC that was being tested for.

December 13, 2022

State of Texas Successfully Appeals Unfavorable Decision in DWI Case

by Robert Guest

In a recent case before the Texas Court of Appeals, the State asked the court to reconsider an originally unfavorable verdict. After a defendant had been charged with driving while intoxicated, he quickly filed a motion to suppress incriminating statements he made to police officers after the incident. The lower court granted this motion, deciding the defendant’s statements to police officers could not be introduced at trial. On appeal, however, the State argued this decision was unconstitutional; ultimately, the higher court agreed and reversed the lower court’s decision.

Facts of the Case

According to the opinion, a 911 caller one evening reported that he had seen a car crash into a utility pole and immediately drive away. The caller told the 911 operator that the car’s driver, who turned out to be the defendant in this case, had emerged from his car to survey the damage, and he appeared to be bleeding from his ear. The caller followed the defendant to his house to check on him, giving the 911 operator the defendant’s address.

Soon, police officers arrived at the defendant’s home and knocked on the door. The defendant answered, and he was holding a cloth to his bleeding ear. The officer asked the defendant several questions, and the defendant was eventually asked to take field sobriety tests. Soon after, the defendant was arrested for driving while intoxicated. At the station, the defendant’s blood alcohol concentration came through as .173, well over the legal limit of .08 in Texas.

December 1, 2022

Court of Appeals Affirms Trial Court Decision in Favor of the State in Texas Drug Case

by Robert Guest

In a recent Texas drug case, the court of appeals affirmed the trial court decision, holding that the trial court did not abuse its discretion, that the trial court’s denial of the motion for a new trial was not so clearly wrong as to lie outside that zone within which reasonable persons might disagree, and that the evidence presented was sufficient for the trial court to find appellant guilty of the charged offense. The appellant was charged with possessing two vape cartridges containing THC and entered a plea of not guilty and waived his right to a jury.

Facts of the Case

According to the opinion, the appellant was encountered by police officers as they responded to a criminal trespass call from an L.A. Fitness location in August 2019. One of the police officers performed a consent search of the appellant’s personal property and discovered a small box containing two THC vape cartridges in his fanny pack. The labeling on the box indicated that the content was created with medical cannabis. The police officer took the evidence to the police station, where it was inventoried. Following the completion of a drug lab submission form, the evidence was sent to Armstrong Forensic Laboratory (Armstrong) for analysis. Armstrong was asked to test the fluid for controlled substances, including delta-9 THC, one of the isomers of THC. In Texas, a delta-9 THC concentration threshold of 0.3 percent distinguishes whether a substance is hemp, which is legal, or not. Dr. Kelly Wouters, Armstrong’s director, testified that the fluid in each vape cartridge tested positive for delta-9 THC above the threshold amount.

The State introduced into evidence a lab report prepared by Wouters and a case filed, which contained bench notes, raw analytical data, calibrations on quality control methods, and backstops to ensure the testing was performed correctly. The defense counsel questioned Wouters on cross-examination regarding a number of things, including the chain of custody for the evidence at Armstrong. Wouters testified that the case file did not include any chain of custody details, but the names of four or five individuals at the lab who could have touched the evidence and information regarding who received and analyzed the samples could be made available. The names were made available to the defense counsel, but no further questions were asked about the work performed and nobody else from the lab was called to testify. The trial court found the appellant guilty of THC possession as charged in the indictment and sentenced him to six years of confinement.

November 15, 2022

Texas Court Rejects State’s Appeal, Affirming Judge’s Decision to Grant Defendant’s Motion to Suppress

by Robert Guest

In a recent case involving a motion to suppress evidence stemming from a traffic stop, a Texas Court of Appeals affirmed the trial court decision, holding that the police officer did not have reasonable suspicion to stop the defendant. The defendant was pulled over after the police officer claimed that the truck crossed the white line into an adjacent lane briefly. At trial, a grand jury returned an indictment charging the defendant with fraudulent possession of identifying information and forgery of a government instrument. The defendant subsequently filed a motion to suppress the evidence collected during the initial traffic stop.

Facts of the Case

According to the opinion, David Alfaro, an officer with the City of Corpus Christi Police Department, was the sole witness for the prosecution. Officer Alfaro testified that he observed a U-Haul truck parked at a fast food restaurant in Corpus Christi around 1:19 A.M. Officer Alfaro stated that he had received a notice to be on the lookout for a U-Haul truck that had been involved in multiple local burglaries. As a result, he followed the U-Haul in his marked patrol car onto the I-37 highway before observing the U-Haul truck’s fires cross the line into the adjacent lane briefly. Officer Alfaro then initiated a traffic stop based on his suspicion that the defendant failed to maintain the vehicle in a single lane.

At trial, the court admitted Officer Alfaro’s dash-cam video footage. The footage depicts the defendant’s U-Haul traveling in the center lane of a three-lane highway. The U-Haul truck is the only vehicle visible in the footage for the duration of the video. The passenger side rear tire of the U-Haul truck can be seen briefly straddling the lane divider after rounding a curve. The U-Haul truck then moves towards the opposite lane divide, remaining in its lane. Officer Alfaro then activated his patrol lights and initiated the traffic stop. The trial court found that Officer Alfaro lacked reasonable suspicion to stop the defendant and granted the defendant’s motion to suppress.

October 20, 2022

Commercial DNA Testing Technologies are Accepted by Texas Courts

by Robert Guest

Criminal investigators and prosecutors have always used whatever technology is available to assist them in finding and prosecuting alleged criminal activity. Technology has come a long way in the past century. Instead of using magnifying glasses and dusting for fingerprints, today’s detectives utilize cutting-edge technology to identify and prosecute criminal suspects. The advent of DNA technology in the past 40 years has revolutionized criminal investigation. New technologies are not always reliable, however, and “junk science” has been used in the past by prosecutors when securing illegitimate convictions. The Texas Court of Appeals recently addressed a defendant’s challenge to a relatively new method of DNA analysis.

The defendant in the recently decided case was arrested and charged with sexual assault after an investigation pointed to him as a suspect in the rape of a neighbor. Police recovered many pieces of evidence to link the suspect to the crime, and biological samples were taken from the defendant to compare with evidence left at the crime scene using DNA testing technology. During the trial, the prosecutor called an expert witness to discuss the results of the DNA testing. The DNA testing for this case was performed using a technology known as Y-STR testing. According to the witness’s testimony, the defendant’s DNA matched the semen recovered from the crime scene. The expert testified that the chances of the DNA being from another unrelated person from the suspect were 1/237,000,000,000,000,000,000,000,000,000,000. Based on the testimony from the expert, as well as the other evidence offered at trial, the defendant was convicted of the crimes.

The defendant appealed his conviction on several grounds, mostly arguing that the DNA testing was unreliable and that the Y-STR testing technology used by the prosecutor’s expert was not proven to be accurate. On appeal, the high court rejected the defense’s arguments, noting that settled Texas law accepts DNA testing as a reliable method of identification, and previous Texas Supreme Court decisions have allowed the admission of Y-STR evidence that was even less compelling than that offered in this case. As a result of the high court’s ruling, the defendant’s conviction will stand

October 12, 2022

Texas Defendant Loses Appeal in Murder Case with Appellate Court Lacking Jurisdiction to Rule on Issue

by Robert Guest

In a recent murder case coming out of a Texas court, the defendant unsuccessfully argued on appeal that the trial court abused its discretion by failing to grant either a motion to recuse or referring a request to the presiding judge of a case under Rule 18(f). The defendant was convicted of the offenses of murder and aggravated assault and was sentenced to 45 years of confinement for each of the convictions. The State argued that the appellate court lacked jurisdiction to rule on the issue, arguing for a dismissal of the defendant’s claim. On appeal, the appellate court ruled that the issue did not fall within the court’s jurisdiction, and subsequently rejected the claim.

Facts of the Case

In 2011, the defendant was convicted of both murder and aggravated assault and sentenced to 45 years of confinement for each of the offenses. The clerk’s record from the trial court stage indicates that the defendant filed a verified motion to recuse in both trial court cases. At the bottom of the defendant’s motion is the trial court’s signature, with a handwritten ruling granting the motion, as well as a date of signing. In response to this appeal, the State has filed a motion to dismiss the claim on the grounds that the appellate court lacks jurisdiction. The State argues that there is no right to appeal an order granting recusal and any attempt to appeal the failure to rule on a motion to recuse should be moot because the trial court granted the motion.