Kaufman County Criminal Defense Lawyer

November 22, 2016

Do I have to show up for misdemeanor court in Rockwall or Kaufman County? Can my lawyer appear for me?

One way the criminal justice system breaks defendants into pleading is by wasting their time. Nowhere is this more evident than in making a defendant appear for a misdemeanor announcement PNC (plea negotiation conference), or first setting.

In Kaufman and Rockwall County (think the counties east of Dallas), the judges require defendants to attend all misdemeanor settings. What’s wrong with that? Let’s talk about the first setting in a misdemeanor case.

90% of the time at the first setting I have not received discovery yet. We usually pick this up in court and sign for it at the first setting. Not having discovery means I haven’t reviewed discovery. If I haven’t reviewed the discovery, then I can’t do anything on your case. If I can’t do anything on your case then we have to reset it (also called a pass). Which means you, the defendant is going to sit there for an hour while all this happens. We used to be able to appear for our clients on first settings in Kaufman County, but that’s gone away as a thing.

October 18, 2016

Kaufman County Criminal Court- First Settings, Announcements, and PNCs

by Robert Guest

Many clients get nervous about going to court. They imagine they will have to speak to the judge, or that they will need to testify, or the police will be there to confront them about their case. The truth is most settings in Kaufman County can be pretty dull for the defendant. We have three routine (and sometimes boring) settings for Kaufman County criminal cases- first settings, announcements, and PNCs.

First Setting-

A first setting, is well, your first setting. It’s the first time you appear in court for your case. On misdemeanor cases, this is usually 2-3 months after your arrest. Some cases take longer, for example, if you have a DWI with a blood test that could take a few months to get the result. Felony cases have to be indicted by a grand jury, and that can take 4-6 months or longer.

October 23, 2015

Judges shouldn’t require court costs up front in plea bargains

by Robert Guest

One of the stranger local practices in Kaufman County is the requirement of paying court costs up front in misdemeanor cases. That is, you are supposed to pay court costs on the day you plead guilty. This local preference is often a requirement to enter a plea, with some exceptions and variation among our County Courts. It’s the only county I practice in that has this policy and it’s one I’ve never understood.

I have not taken court appointments for a while, so it’s less of an issue for my clients who can usually get a few hundred bucks together on the date of the ple for costs. However, for indigent defendants paying $261-$460 at the time of plea can be impossible. Worse, indigent defendants have even gone to jail to “sit out” court costs if they did not bring them to court.

Recently Etta Mullins, widely regarded as the worst criminal judge in Dallas County when she was on the bench, was reprimanded by a special court of review for the same practice, inter alia. The opinion talks about (see Charge VI) the role of the judge in accepting plea bargains and/or requiring costs or fines up front. Basically, it’s bad and you shouldn’t do it.

October 21, 2015

Exhibition of a Firearm

by Robert Guest

There was an arrest of a North Forney student for exhibition of a firearm today. It’s not a law you see often so let’s talk about it here, and discuss the juvenile process as well.

First, what is the law on guns in schools?

To the Education Code we go-

January 20, 2015

Kaufman County Jury Duty- No, I wasn’t struck

by Robert Guest

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.

July 26, 2014

A Detective called and wants me to come in for an interview, what should I do?

by Robert Guest

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.

June 2, 2014

My felony case was indicted then dismissed, can I get an expunction?

by Robert Guest

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.

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

April 18, 2014

State Jail Felony Drug Possession Cases

by Robert Guest

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.

March 31, 2014

1983 Lawsuit filed against City of Kemp/Police Chief and Kaufman Sheriff Deputy

by Robert Guest

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.