Articles Posted in Criminal Appeals

What does the “same criminal episode” mean? 

Section 3.10 of Chapter 3 of the Texas penal code defines a “same criminal episode” as “the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: …. or (2) the offenses are the repeated commission of the same or similar offenses

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.3.htm 

A recent case from the Dallas Court of Appeals (Woodland vs State) discusses the use of prior convictions in “he said/she said” sexual assault cases. First, what is a “he said/she said” sexual assault case? It’s when the main evidence in a case is the complaining witness testifies, and so does the defendant. We are going to skip the issue of if a defendant should or should not testify in right now.

Can prior convictions be used against a defendant in sexual assault cases? The answer is, probably if the prior convictions are germane to the new offense. So a DWI might not be admitted, but a case regarding sexual assault or sexual misconduct can be. There is a general rule that prior convictions may not be used to show “character conformity”, that is, that the defendant is guilty because he is a criminal. But, in sexual assault cases there is a special provision, 38.37 of the Code of Criminal Procedure, that allows prior convictions to be used against a defendant.

Here is a quote from the court-

In law, must and shall are important words. Must and shall indicate that an action is required, it has to happen, it is a part of the process, proceeding, or hearing that can’t be ignored. Contrast that with “may”, which implies that it doesn’t matter if the thing happens or not.

One thing that is supposed to happen in a criminal case, is that the Judge must inform the defendant about the range of punishment before he pleads guilty. That is, the defendant must know how much time he’s look at before he says “I’m guilty”.  Here is the shall if you want to read it-

Texas Code of Criminal Procedure 26.13

What is a stacked sentence?

Good question. A stacked sentence is one in which two sentences are to be served consecutively or one after another. So if Bob has two cases for possession, and gets 5 years TDC in each case, then a stacked sentence would require him to serve these sentences back to back.

Contrast that with a concurrent sentence, which lawyers call “CC”. If Bob has two charges for possession and gets the same 5 years in each case, then both sentences run at the same time. So Bob does one 5 year sentence.

Elections matter, and in Texas we elect appellate judges. We’ve been electing extremist conservative authoritarians for a few decades now.  The result is that even when the State cheats at trial or a trial judge makes a clear mistake, it’s nearly impossible to get a conviction overturned. Today we are going to look at hearsay. What if you are convicted at trial, and the State used hearsay to help them convict? (Spoiler alert, it’s not going to be good for the defendant on appeal).

What is hearsay in Texas?

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted and is inadmissible unless a statute or rule of exception applies. TEX. R. EVID. 801(d), 802.

Most people assume that the criminal justice system in Texas is fair, or at least makes sense. It’s only when they get arrested do they discover how FUBAR this “justice” system can be. Here is one example, say you get arrested for a DWI, you end up pleading to a traffic ticket, and the State dismisses the DWI case. You’d think you could have that DWI case expunged right? WRONG.

The Dallas Court of Appeals recently ruled on that very issue in No. 05-18-00348-CV.

The Defendant was arrested for DWI in Gillespie County. As part of a plea bargain, the DWI was dismissed and the Defendant pled guilty only to illegal parking. Later the Defendant wanted this DWI off her record, after all, it was dismissed so that seems reasonable right? Yeah, not so much.

One of the most frustrating aspects of criminal defense work is the double standards that abound between what we expect of government (cops and prosecutors) and what expect of citizens. Which leads us to the case of the day…..

Today’s SCOTUS disaster is Heien vs. North Carolina. The issue was- Can the police detain you for something that is not illegal, if the police “reasonably believe” you have broken the law?

The answer is a resounding 8-1/”Holy shit what happened to the liberal justices?!”/”Hell YES they can!” ruling.

In Texas our pro conviction appellate courts have blessed the practice of law enforcement profiling drivers and investigating routine traffic stops as drug trafficking.  This practice involves an officer deciding that you are a drug dealer and then following you until you commit a traffic violation.

I thought racial profiling was illegal in Texas?

It is. But to get anywhere with that you an officer honest or dumb enough to testify that race was a factor in his investigation. LEO learns quickly to keep those thoughts to himself. Our numerous traffic laws allow great cover for profiling. DPS knows to just follow who they want to stop until they can find some evidence of a traffic violation. That’s considered great police work in Texas. We allow and encourage non-racial profiling. Which means a DPS Trooper can list any reason but race as a reason to follow you and wait for a traffic violation and then search for drugs.

So you have a trial and you are found guilty and the judge sentences you to 45 years in jail. You file an appeal and win, and you get a new trail. However, you are found guilty again but this time the judge sentences you to 50 years in jail. Did the judge increase your sentence because you exercised your right to appeal? If so, that’s called judicial vindictiveness and it was the issue in a recent appeal out of Kaufman County.

Today’s case of the day is-

No. 05-13-00130-CR ROMAN JESSE MENDOZA, Appellant V. THE STATE OF TEXAS, Appellee

It’s strange to talk about speedy “trials” in probation revocation cases, because a probation revocation hearing is nothing like a criminal jury trial. For example, in probation cases your only audience is the judge, you have no right to a jury, and the burden of proof is much lower to revoke (preponderance) than convict (beyond a reasonable doubt). Still, a person facing a motion revoke probation has a right to a speedy trial, or hearing. A recent case from the Dallas Court of Appeals addressed this issue. Today’s case of the day is

No. 05-13-00371-CR GEORGE GUO, Appellant v. THE STATE OF TEXAS, Appellee

So what happened to Mr. Guo?

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