Texas Laws

November 1, 2013

DWI and the Car as a Deadly Weapon Enhancement

Some prosecutors will seek to punish a Defendant who demands a trial and start digging through the case to find an “enhancement” (enhancement increase the possible sentence or limit parole etc). This is more common for Defendants with lengthy criminal histories, but some prosecutors apply this approach to anyone who dares seek a jury trial.

For example, a prosecutor may try to enhance certain felony cases because the county did not receive enough rain last year and was declared a disaster area. Our laws are so poorly written, and prosecuting in Texas is so poorly regulated, that these revenge charge enhancements (or trial penalties) are easy to come by if a prosecutor is so inclined. There is literally no risk to the State for piling on new charges or enhancements on every Defendant who seeks a trial.

This leads us to our case of the day-

August 31, 2013

Top Ten Reasons Texas Should Legalize Marijuana

by Robert Guest

Eric Holder has given a tentative green light for State recreational marijuana programs to go forward. Given how the last medical marijuana memo has been largely ignored, I’m still a little pessimistic the DOJ will really leave these States alone. Regardless, here are ten reasons Texas should take this opportunity to reform our State’s marijuana laws. As a reminder, possession of any usable amount of marihuana is a 180-days-in-county-jail misdemeanor in Texas. I know, we are insane about weed in the Lone Star State, but it doesn’t have to be this way. On to the list.

1. Willie Nelson. Are we really going to keep arresting Willie? Really? What kind of asshole arrests Willie Nelson for pot. If this was my only reason, it would be enough.

2. It’s safer than booze. Texans drink a lot. Booze kills people. Weed can’t kill you.

August 26, 2013

Uber vs. The Dallas Taxi Cartel, with some DWI angles thrown in

by Robert Guest

DMN reports on the ongoing battle of Uber vs. the local taxi cartel. Uber is an app that lets you quickly connect to a taxi cab. It’s easy to use and has quickly gained a following in major cities across the US. Unfortunately for Uber their program is a threat to the Dallas taxi cartel. Instead of learning to compete with Uber and offer a better service, the Dallas Taxi Cartel is seeking to cash in on their influence and make Uber illegal. That’s right, of all the problems we have in Dallas the City Council is wasting time trying to make a taxi app illegal.

Why would the powers that be entertain such an idea. Easy? The Taxi Cartel makes profits by limiting competition. The cab companies uses these profits to “influence” council members and lobby for more anti-competitive regulations. For example, Dallas has an artificial limit on the number of taxis, this means the market can’t respond to demand and the consumer pays more.

So how much influence does the Taxi Cartel have in Dallas? DPD sent the vice out to arrest cab drivers who offered rides through Uber. Read that again, arrest cab drivers for the “crime” of giving rides to people who use an app. Fortunately for Dallas citizens the Vice Squad enforces mostly consensual crimes like prostitution, so their absence isn’t much of a threat to public safety.

August 24, 2013

Tom Pauken Wants To Help Veterans, By Arresting Them For Medical Marijuana

by Robert Guest

Tom Pauken is running for Governor of Texas. He’s nearly identical to Greg Abbott in every way, except Greg Abbott has a lot more money. Tom’s trying to differentiate himself so he recently took to Facebook to tout himself as a supporter of veterans.

Tom was asked if he would support allowing veterans to use medical marijuana, or if he wanted to continue to have them arrested. At first Tom just deleted the comments. (He banned me from his page and removed all my comments).

Finally Tom’s inability to answer this question became really embarrassing so he let loose fired off the answer below. Now remember what the question was; Tom Pauken, who allegedly really loves veterans, was asked if should we arrest veterans who use medical marijuana. Tom’s answer-

August 11, 2013

“Stacking” Sentences in Texas. What is the law on Cumulative Sentences?

by Robert Guest

July 5, 2013

How does LEO feel about your Constitutional rights at a DWI checkpoint?

by Robert Guest

Texas has a lot of terrible laws, but one thing we don’t allow is DWI checkpoints. The Supreme Court has decided that these can be constitutional but the state legislature must approve them. Hopefully ours never will. In case you ever think they are a good idea, here is what we are missing.

May 16, 2013

Michael Morton Act Becomes Law- No More Closed Files in Texas

by Robert Guest

I used to live in Ellis County and I had a few criminal cases there. Not as many as I had in Kaufman and Dallas, but enough that I quickly learned the Ellis County District Attorney’s had little regard for justice or preventing wrongful convictions. Why? They had a closed file policy.

Here’s how it went. Client would hire me for a DWI or weed case. I’d go to court and ask for a copy of the police report. I’d be told that they could read it to me (no seriously, they would say this), or sometimes even let me read it. But if I wanted a copy then I would have to file a discovery motion and then they would withdraw all plea offers and force my client to trial. So basically they set up a closed file system to bully defendants into pleading guilty without looking at the evidence. It worked sometimes, clients may not want a jury trial and they may not even want a pre trial hearing, they may just want a plea bargain, but it’s hard to negotiate when you don’t know anything about the case. The ADA would usually say something like “well, you can ask your client what happened.” That’s cute, your officer has the ability to stop and take notes, review the video tape, speak to witnesses at the scene. My client is in handcuffs and can’t record anything, so yeah, thanks for the great advice.

I thought this closed file policy was ethically dubious. The prosecutor, by hiding all evidence, was asserting that nothing in their file was exculpatory (Brady material), which they had a duty to disclose. Of course, these ADA’s seemed to think nothing was exculpatory, in a Ken Anderson way. The closed file policy also showed a complete lack of confidence in local law enforcement’s ability to investigate and document suspected criminal activity.

November 29, 2012

I’m “certified” in Standardized Field Sobriety Testing

by Robert Guest

A few months ago I took Lance Platt’s SFST certification course for attorneys. We had mostly defense lawyers and some prosecutors in the room. I didn’t come into this with clean hands. My experience with DWI cases and research of these “tests” tells me they are voodoo bullshit.

I came to this conclusion because as I understood the SFST studies they lacked the markers of real science and quality research; control groups, blind studies, placebos etc. Did you know the field sobriety tests have never been tested on a large groups of individuals who have not been drinking? Or on individuals with different medical conditions? There have been exactly zero studies on gender differences, or on the effect of performing the tests under the stress to mimic the pressure of a typical roadside DWI investigation. Why?

SFST’s are agenda driven science. The feds needed a way to arrest people who had been drinking, but without any bad or impaired driving behavior. So they invented the notion that by performing 10 minutes of balancing tests you can tell if someone is over .08.

July 26, 2012

Texas Child Pornography Law- What is a “lewd exhibition”?

by Robert Guest

I’m betting that most of you have parents. And most of your parents owned a camera. And with that camera some of your parents took a picture of you sans clothing while you were young. Well, what makes that legal? Isn’t in a crime to possess naked pictures of kids? Could those photos be… child pornography? Are your parents sex offenders? Probably not. But to be sure, you better read the rest of my post.

What’s the Texas law on Child Pornography?

To the penal code, section 43.26.

April 18, 2012

Dallas Court of Appeals Affirms Kaufman County Drug Conviction

by Robert Guest

I often have a hard time quickly explaining to my non-lawyer friends exactly how the appeals system is stacked against criminal defendants. Fortunately today’s case, Barnes vs. State, crystallizes how the constitutional rights of defendants are effectively waived through nonsense technicalities. It’s a Kaufman County Drug case, appealed to the 5th District in Dallas.

What happened?

Barnes filed a motion to suppress claiming the police investigation was unconstitutional. Specifically, Barnes sought to exclude statements made during the investigation. This motion was denied (as are most motions to suppress).