Articles Posted in Kaufman County Criminal Defense Lawyer

I received my first jury summons since moving to Kaufman County. It’s the first I have received in at least 10 years. I must be on some kind of “Do Not Call” list for potential jurors (let’s call them PJs). If you have jury duty in Kaufman County, you get a postcard with instructions to call the Friday before trial to see if the case is still going. I did, and it was. Monday was a holiday, so I showed up today ready to participate in a jury trial for the first time as a citizen and not a lawyer. It was a criminal case, and yes a defense lawyer can serve on a criminal jury. He/She/Me will likely be struck by the State (each side gets 10 strikes in a felony case, with some exceptions). You can be struck in this manner for any reason except race/religion etc. When the State tries to strike all the say, black members of a jury, the defense objects under a Batson challenge. 

As for being struck for cause, that can happen if you are insane, a felon, or have a bias or prejudice you can’t get over that relates to the case. For example, the State will ask who doesn’t like cops or the criminal justice system, or if anyone knows the witnesses/lawyers/defendants. Some judges will go a long way to rehabilitate a PJ. That is when a PJ says they have some bias, but the judge will ask the potential juror questions until the PJ  says “I can be fair and follow the law”. That’s the magic language that can allow biased jurors on a panel.

Unfortunately my panel was excused since the defendant a) got in a car accident this morning and b) a plea agreement was reached.

So a detective has called you up and invited you down to the local police sheriff’s department for an interview? When you arrive they will tell you that you are free to go at any time, and that they just want to get your side of the story. THIS IS A TRAP. Here’s how it works.

First, they only tell that you are free to go so they do not have to Mirandize you. You have to be under arrest and/or in custody for your Miranda warnings to apply. By telling you that you are free to go, they can ask whatever they want without telling you about your right to remain silent, or right to end questioning, or right to have an attorney present. They do this because the do not want you to have a lawyer there. They want to trick you into confessing.

Second, the “get your side of the story” line is meant to diffuse your anxiety. The detective wants you to think that they are going to help you and that they have an open mind as to what you tell them. Here’s the deal, before you show up the detective has already decided if they think you are guilty. Nothing you say will change their mind. They are going to take parts of your story that fit their theory of how are you guilty and assume those are true, they are also going to assuming you are lying if you make statements that don’t fit their theory that you are guilty. It is a lose-lose situation.

Our firm handles expunctions for all kinds of cases, and we spend a lot of time clearing up misconceptions about what the law is on expunctions in Texas. The number 1 misconception is that deferred adjudication probation cases can be expunged. So many lawyers were misinforming their clients about deferred expunctions, that deferred probation cases in Kaufman County now have a separate plea form that informs all Defendants that DEFERRED PROBATION CASES CAN NOT BE EXPUNGED, ONLY NON-DISCLOSED (some call this “sealed”). Quick lesson, expunction destroys all records pertaining to an arrest, non disclosure keeps those records from the public (but the Government can still view them and they still exist).

But that’s not what we are going to discuss today. Today’s misconception is that all dismissed felony cases can be expunged. Not so fast. The law in Texas places restrictions on the expunction of dismissed cases and a recent Dallas Court of Appeals case breaks down the law so let’s use that as our example.

Today’s case of the day is Bothwell vs. State, an appeal out of the 86th District Court in Kaufman County. 

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

Have you been arrested for a State Jail felony drug possession in case in Dallas, Rockwall, or Kaufman County? Are you currently a recreational meth, coke or heroin user?  Here is what you need to know.Possession of small amounts (less than one gram) of street drugs (coke, meth, heroin but not weed or some pills) is a State Jail felony in Texas.

What is a State Jail felony? Good question. Let’s start with that.

State Jail felonies are the lowest degree of felony in Texas, but it can still leave you as a convicted felon which has life altering consequences. The range of punishment for a SJF is between 6 months and 2 years in a State Jail unit. But here’s the good news, the State Jail system was originally designed to make drug addicts sit in jail until they were cured, so there is no parole from State Jail. But the State Jails filled up too fast and cost the State too much money, so if you have no prior State Jail drug cases then you are going to be looking at probation.

The City of Kemp, Texas and it’s police chief are being sued in the Eastern District of Texas for an alleged false arrest and police brutality by Robert McCollom (Plaintiff). Kemp disbanded it’s police force in 2012 and the Kaufman Sheriff’s office was going to patrol Kemp. I am not sure when Kemp PD undisbanded (rebanded?) but apparently they are out making arrests again. The City of Kemp and the Chief of Kemp PD Jimmy Council (who was rescued last year after falling down a well in Lassie-eqsue fashion) are being sued along with a Kaufman Sheriff Deputy in a 1983 action. Let’s look at the case and learn about federal civil rights lawsuits shall we?

What’s a 1983 case?

42 USC Section 1983 allows lawsuits against state actors for constitutional violations. That is, if a state or local government official violates your constitutional rights under the “color of law” (as part of their government employment) you can sue them in federal court.

I went to my first DFW NORML meeting last night and came away very impressed. Really good speakers and a lot of very friendly and enthusiastic supporters. Over 120 people showed up on a holiday weekend, which is something I wouldn’t have thought possible 10 years ago.

When I first started blogging legalization and reform of marijuana laws was still not a mainstream topic. Locally in Kaufman County I know at least a few people thought it was a strange issue for me to champion. Back then we had a few medical marijuana states, but no where near the momentum we have now.  It’s rare now that I discuss marijuana prohibition with anyone under 40 who thinks it’s a successful program that should be continued. The game has changed folks, and momentum is on the side of freedom and growing every day. Much more media attention on the issue, polls are showing that political majorities across the country support reform, and the scientific evidence for marijuana’s medicinal qualities is too strong to question at this point (unless you’re the DEA).

That’s the good news. The bad news, we still live in Texas and authoritarian social conservatives still exert too much influence on the political process. We can fix things in the Lone Star State, but like any political movement more people need to get involved. The best way to do that is to join your local NORML chapter.

A recent appeal from Kaufman County highlight the dangers of self representation in criminal cases. In misemeanor cases it’s alarmingly common for defendants to walk into court and sign away their right to counsel. These pro se defendants talk to the prosecutor and almost always end up accepting whatever plea bargain is offered. It’s common for these defendants to later try and change these guilty pleas when they realize that a) this criminal case is on their record forever b) they weren’t guilty and they wished they hadn’t pled to the charge or c) they realize they got a horrible deal and now they want to renegotiate.

For felony cases it is less likely that a defendant will proceed sans counsel. For felony jury trial it is even more rare. It is the height of hubris for someone to think that they can walk in and pick twelve jurors when they are facing both a skilled and experienced prosecutor and years behind bars. You may not be surprised to know that some felony defendants are not known for making great life choices, and hence we have the occasional pro se jury trial. It’s usually a train wreck of sorts, and the defendant always loses.

When the defendant loses they often ask their appellate lawyer to try and get the case reversed because they realize that going without a lawyer was a horrible idea. Which leads us to our case of the day-

Criminal defense clients come into consultations with a lot of anxiety about the process, and they want to know what they can to do to help their case. I get it, being arrested is a traumatic experience and you have a strong impulse to “do something” to make this better. Focus that energy and you can your defense lawyer do his/her job. Here are 5 ways to help your criminal case.

1. If this is a drug or alcohol case, let’s work on those issues now.

First a libertarian disclaimer- I don’t think anyone should be arrested for drug possession. I find recreational drug use morally neutral. However, the State disagrees with my view and wants to arrest everyone every time they use drugs.

Good question. One of the ways our criminal justice system extorts guilty pleas out of defendants is by wasting their time. The biggest time waste in the criminal justice system is requiring Defendants to show up at every court setting. It’s most ridiculous is misdemeanor cases and it’s a huge loss of productivity since most defendants are missing many days of work just to show up for their pot case. It’s not unusual for Defendants to be fired for going to court.  The situation varies by county, in Dallas county your lawyer can show up for most misdemeanor settings. In Kaufman County the Defendant has to appear at every setting, with one exception.

About once or twice a month we will get a client who needs to move a court date and can’t make it. This is always a dangerous proposal and we advise them that it’s up to the judge to allow a case to be reset sans appearance. If a client chooses to just not show up and we haven’t worked it out with the court, then the Defendant can be charged with failure to appear.

What is failure to appear in Texas? 

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