Criminal Appeals

January 2, 2015

Ignorance of the law in no excuse, unless you’re a cop

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.

August 3, 2014

(Non-Racial) Profiling is Legal in Texas, Don’t Be a Victim

by Robert Guest

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.

May 15, 2014

What is Judicial Vindictiveness?

by Robert Guest

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

May 14, 2014

Speedy Trial Rights in Probation Revocation Cases

by Robert Guest

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?

May 2, 2014

CCA- Prosecutors can “forget” to follow Discovery Orders in Texas

by Robert Guest

Remember last week’s post about a DWI case where the State violated a discovery order and hid evidence from the defense and violated a discovery order that required them to turn over evidence in a timely manner? If you don’t, here’s my post about it. Long story short, the Dallas Court of Appeals said it’s ok if the State ignores a court order when it comes to discovery and doesn’t turn over evidence to the defense on time.

Not to be outdone, our state’s highest criminal court, the Court of Criminal Appeals, ruled on the same issue recently in a different case, and guess what? They came to the same conclusion, if a prosecutor hides evidence or “forgets” to turn over evidence and violates a court’s discovery order, that’s fine.

The purpose of our criminal appellate system in Texas is to uphold a conviction at all costs. It’s the reason that our appellate courts bend over backward to say a defendant “waived” all objections on appeal, while at the same time our appellate court allow (if not outright encourage) the State to ignore discovery orders, because the system wants the conviction above all. The asymmetry of accountability between the State and Defendant is mind boggling.

April 24, 2014

What Happens When the State Violates a Discovery Order in a DWI case?

by Robert Guest

One reason we needed the Michael Morton Act (which improved on our State’s horrible discovery rules in criminal cases) is that the State was hiding evidence which convicted innocent people. One problem with the Michael Morton Act, and the prior discovery rules is that there is no penalty if the State fails to turn over evidence, and then chooses to surprise the defense at trial with secret evidence. Let’s contrast this situation to the standard that we hold defendants, in which they are penalized at every stage of a proceeding for the slightest error. Defendant has work and misses a court date? Warrant! Defendant objects to the wrong subarticle of the Code of Criminal Procedure, that issue is waived on appeal! They created a new board certification for criminal appeals in Texas. But you don’t have to be an appellate genius to guess the outcome of any criminal appeal. 95% of the time whatever violations of the evidence rules, code of criminal procedure, or Constitution will be overlooked if the court of appeals can uphold a conviction. That’s the purpose of appellate courts in Texas, to uphold criminal convictions, and to reverse judgments for damages against Defendants in civil cases.

This leads me to our case of the day- Laura Sanders vs State of Texas

What happened?

April 3, 2014

What’s the law on kidnapping in Texas?

by Robert Guest

The Dallas Court of Appeals recently upheld a Rockwall County kidnapping conviction. Let’s look at the laws regarding kidnapping in Texas, and discuss the facts that led to the courts decision. Here’s the case- Wilson vs. State of Texas- I usually go through all the facts of the case, but this one has a really weird fact pattern, and I think that’s why the defendant got probation. It just not what you think of when you think of a kidnapping. So I’m going to skip it so we can cover some other areas.

First, what’s the law on kidnapping in Texas?

Good questions, let’s go to the opinion-

January 19, 2014

Does the Texas Transportation code (implied consent) trump the 4th amendment?

by Robert Guest

If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.

The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.

So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.

December 31, 2013

Houston Court of Appeals affirms State’s right to rigged DWI trials

by Robert Guest

Being a DWI defense lawyer, or defendant, is tough in Texas. One reason is that our appellate courts will go to almost any length to uphold a DWI conviction. We have pro-conviction judicial activism to an amazing degree in Texas. Don’t believe me. Let’s go to the case of the day,

Kristen Aleia Simpson v. The State of Texas

Kristen was convicted of DWI after a jury trial. But it was a rigged trial. Rigged in the fact that the judge allowed jurors who expressed a bias towards the State to remain in the jury pool. Did you think that jurors are not supposed to be biased? That they are supposed to be fair and neutral? That’s only fair right?

December 11, 2013

Rules of Evidence, Harmless Error, and Facebook Posts

by Robert Guest

If you read criminal appeals you know that our appellate courts desperately want to help the State by upholding as many convictions as possible on appeal. They accomplish this in a few ways, one is by letting the State break rules and laws as often as possible without consequences. How does this look in practice? Our appellate courts embrace the idea of “harmless error”; that the State is making conviction omelettes it’s ok to break a few eggs along the way.

The Rules of Evidence are a great example. These are the rules that govern what kind of evidence can be used at trial. If the Defense objects at trial and the judge erroneously lets the evidence in anyway the idea is that you can file an appeal and have another court fix this mistake by granting a new fair trial. But this is Texas, and we have a conviction machine to protect, so on appeal the courts look for anyway to justify the fact that while the State may have broken the rules, that’s ok because we got the “right” result, which is that the Government got their conviction. The “finality of convictions” is a key phrase to look for in appellate opinions, it always accompanies injustice.

Let’s go to our case of the day.