Articles Posted in Kaufman County Criminal Defense Lawyer

Mark Bennett runs my favorite Texas defense lawyer blogs, Defending People. Mark has been arguing that part of the Texas law regarding Online Solicitation of a Minor is unconstitutional since 2008. Today, the Court of Criminal Appeals agreed and ruled 9-0 that part of the statue, 33.021(b)(1) is a violation of the First Amendment. Congrats to Mark. Let’s look at the opinion.

Online Solicitation of a Minor- What’s the law? 

The statute is a mess to read, so I’ll summarize. Basically, a person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service  communicates in a sexually explicit manner with a minor; or distributes sexually explicit material to a minor, or knowingly solicits a minor to meet with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse.

Corey Freeman had a bench trial and was convicted of online solicitation of a minor. Corey challenged the law as being unconstitutional for two reasons. One, was that he claimed the law was a strict liability offense in that there was no requirement that he actually believe he was talking to a 13 year old, and second that the statute infringed on his first amendment. The Dallas Court of Appeals disagreed, which is not surprising, almost every conviction and statute is upheld on appeal. This is Texas after all. On a side note, it’s the exact opposite situation for civil appeals, where judgments for plaintiffs are routinely thrown out to better serve our corporate overlords. But that’s a story for another day. Let’s take a closer look at Freeman vs. State.

Facts- Freeman was in a chat with a person identified by the screen name of “brook_chick13.” BrookChick13 stated in communications to Freeman that she was a thirteen-year-old girl. I’ll quote from the opinion here.

Their conversations, over the span of several months, gradually escalated in sexual explicitness. During the correspondence, appellant mentioned wanting to take the girl’s clothes off, kissing her, pulling off her pants and licking her, and “sliding into” her–all the while being reminded by her that she was only thirteen years old. In actuality, appellant was communicating with a male police officer.

It’s another No-Refusal weekend across the Metroplex. That means cops are going to seek blood warrant, and hold you down and take your blood vampire style. Murica!

First, let’s remember how we got here. The legislator passed laws limiting the ability of officer’s to hold you down and steal your blood.That wasn’t good enough for our convict-at-all-costs prosecutors, who got activist judges to effecitvely destroy the protections that were in place.

So now officers will fax their fill-in-the-blank warrants to friendly Judge Rubberstamp to take your blood, because the system needs arrests so we can justify more government employees and higher budgets fora agencies.

As part of the my ongoing open records work I requested the racial profiling data for our local DPS office. I received a breakdown of stops, citations, and searches by race/ethnicity for all stops in Kaufman county for the first 6 months of the year. Texas law requires the recording of this data, which anyone can ask for. Check out my open records 101 guide for a how to.

Let’s look at the data shall we. 13-2328 (13-06-25) letter to requestor.pdf

In the first 6 months of 2013 there were 7,312 total traffic stops by DPS in Kaufman County. 4,744 of those stops had white drivers, 1,685 had black drivers, and 439 had hispanic drivers. Asian, Indian, and “Other” are the remaining choices. I’m assuming Indian means Native American, but who knows.

When you ask potential jurors how they feel about defense experts you will usually hear some voices of distrust. They will think that defense experts are “hired guns” and are approached with some degree of skepticism. I’ve found that many jurors are less cynical when it comes to Department of Public Safety (DPS) experts.

Here is how broken our criminal justice system is. The Department of Public Safety is an agency of the State of Texas. The same State of Texas that is bringing a case against the Defendant. DPS has it’s own army of Troopers who arrests drivers for all sorts of offenses, but mostly make believe “crimes” (drugs) and opinion crimes (DWI).

So after a DPS trooper takes your blood in a DWI case, where do they have this evidence analyzed? At their very own DPS lab! Run by their DPS buddies! The lab will “analyze” this evidence and then show up in court to say…. guess what.. the State should win and the defendant is guilty! It’s like having as A-Rod as the homeplate umpire in the next Rangers-Yankees series.

Clients of mine who have experienced the criminal justice system in multiple Texas counties are often surprised by how different the process is in each locality. The Penal Code and the Code of Criminal Procedure are the same across the State. However, judges still have a lot of discretion in how they run their docket.

For example, how many resets do you get in a court before you must plea or set the case for trial? What time does docket start? What forms do you need to get a plea done? Does the client have to show up at each hearing?

It’s important for lawyers and defendants to know what they are getting into before they arrive. Recently, Dennis Jones was appointed as Judge in the Kaufman County Court at Law. Judge Jones published a short list of protocols for his court that you should know.

Judge Wiley will be sworn in as Kaufman County District Attorney on April 22nd at 1pm in the County Court at Law. All are invited to attend.

I began my career in Kaufman County as a prosecutor in Judge Wiley’s court. I learned quickly that Judge Wiley will not suffer an unprepared attorney in her court, be it a prosecutor or defense lawyer. Her high standards made me a better attorney.

Judge Wiley is tough but fair (I’ll go with present tense from here, since Judge Wiley is still on the bench). She is always curious and interested in the cases and defendants before her. She has compassion, in a very tough love kind of way, for the defendants in her court. For example, Judge Wiley created and manages the successful DWI court program. DWI court helps addict-defendants avoid prison and stay sober with a strict regimen of counseling, treatment, drug testing, and weekly court sessions. It’s a lot of extra work for her court, and it shows her level of dedication to rehabilitating defendants.

Our State’s highest criminal court recently reversed a marijuana conviction out of Kaufman County Court at Law 2, just in time for 4/20. Whenever I discuss marijuana prohibition I always mention how much court time, prosecutor time, appointed lawyer time, police time and tax dollars we waste we waste prosecuting cannabis cases like this one.

It can take years for a case to move form arrest to appeal, and the whole time you are footing the bill so that the criminal justice system can have something to do (besides prosecute real crime that is). Marijuana prohibition is like an evil version of the WPA. Which reminds me, our lege is in session, so why not call your rep and ask them to support bills like this?

Enough editorializing, on to the case, our case of the day is Abney vs State.

When I was an Kaufman County ADA I was assigned to Kaufman County Court at Law. It’s where I cut my teeth in K-town, and it’s a court I still enjoy trying cases in. Kaufman has two County Courts at law, both courts hear misdemeanor cases and certain felonies (felony DWI and state jail dope cases). County Court at Law also hears civil cases, CPS, and juvenile criminal matters.

Here is what you need to know about the Kaufman County Court at Law if you have an adult criminal case.

1. You always have to appear.

Forney is one of the faster growing DFW exurbs. It has quickly become a hotbed of Kaufman County DWI arrests. I used to get a fair number of DWI cases from across Kaufman County, many DPS arrests on the interstate, and then a fair number from Terrell/Crandall/Kaufman etc. It seems that I’m seeing a greater number of DWI arrests from the Forney Police Department. I’m not surprised. Forney is a city seemingly designed to maximize DWI arrests. You can’t walk anywhere, and you certainly can’t walk to any establishment that serves alcohol. I’m not sure why we have the majority of our alcohol serving-establishments next to the interstate, why old downtown Forney (the most walkable area in the city) remains mostly dry.

Forney has it’s own jail, and it is possible to make bail there without being transported to Kaufman. I haven’t figured out why certain arrestees are transported to the county jail and others make bail in Forney. Going to jail anywhere sucks, but the Forney jail/police station is brand new and really clean. Much less risk of getting a resistant staph infection than if you are arrested in Dallas.

Forney does not have it’s own breathalyzer, so if you take a breath test you have to go to Kaufman. By the way NEVER TAKE A BREATH TEST. Kaufman County’s breath test machine is based on 1968 technology. The operator manual admits that today’s version of the Intoxilyzer is no more accurate than it was during the Apollo program. Really, don’t do it.

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