Dallas Criminal Defense Lawyer Blog

CCA Limits DWI Blood Warrants

Thu, 24 May 2012 12:13:24 -0600

I'm amazed on how banal DWI blood warrants have become. Maybe I shouldn't be. Look how far we've come in just a few shorts years. The TSA molests plane passengers without cause, and it's largely a non-issue. The police can demand that you give them your blood, and few seem to care. We've had DPS drones deployed for while (since discontinued) and... no one cared. I'm wondering what it willl take before privacy and liberty enter our political lexicon. Is there anything the public won't suffer in the name of public safety? Moving on.

Let's talk blood warrant appeals. Today's CCA case of the day is Sanchez vs. State-

What happened? A judge from Montgomery county signed a warrant to take Sanchez' blood in Harris County.

Holding- You can't do that.

Why not? That's where it gets complicated. The State argues that it's ok because judges can issue statewide arrest warrants, inter alia. Defense says no way because judges have limited power through the Texas Constitution. I'll let the court explain.

The State's argument asserting that the search warrant should be treated as an arrest warrant is without merit. The State ignores the practical differences between an arrest warrant and a search warrant. An arrest warrant protects an individual from an unreasonable seizure of his person and can be issued statewide based upon the assumption that a person is not likely to stay in the geographical proximity of his alleged offense for an extended time. See Steagald v. United States, 451 U.S. 204, 213 (1981); id. at 225 (Rehnquist, J., dissenting). In contrast, a search warrant is issued to protect an individual from an unreasonable search when the particular location of the item is ascertainable. Id. at 213. These differences arise because a search affects a person's
Some statutory county courts are composed of more than one county. TEX. GOV'T CODE §§ 25.2601-.2606. The laws relating to statutory county courts (including those articulated above) apply equally, with minor exceptions, to such multicounty statutory county courts. Id.

§§ 25.2601(b), 25.2606. Therefore, the jurisdiction of a multicounty statutory county court to issue a search warrant encompasses, but is limited to, the counties of which it is composed. generally less intrusive than a search. See Segura v. United States, 468 U.S. 796, 806 (1984). Consequently, in this case, an arrest warrant would allow police to arrest Appellant but not to draw a sample of his blood. The compelled extraction of blood infringes on Appellant's expectation of privacy, so before that sample could be taken, a search warrant (not an arrest warrant) was necessary to protect Appellant from an unreasonable search of his blood.

I like ruling for a couple of reasons. Not only because the defense won, but also because search warrant should be limited to judges who are accountable to the local legal community and voting public.

An area not addressed in the opinion is that judges should be somewhat familiar with the area in which they issue warrants. An El Paso judges issuing Texarkana search warrants makes no sense. I think it helps a judge make a probable cause determination if she has a history with the area and local law enforcement.

Court of Criminal Appeals Ok's Illegal Traffic Stops If The Driver Has An Oustanding Warrant

Wed, 23 May 2012 11:25:44 -0600

Here's a paragraph that makes my libertarian blood boil.

So, while the initial stop itself was illegal (emphasis mine), Grijalva never went beyond the bounds of what would have been constitutionally permissible had the stop in fact been justified at its inception. Under these circumstances, applying the law, as we have explicated it in this opinion, to the undisputed facts of the case in our de novo review, we conclude that the behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee's outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee's pants pocket, thus purging the primary taint.

The cops acted illegally, but that's ok. Ugh.

Today's case of the day is Mazuca vs. State, from El Paso.

What happened?
The cops pulled over Mazuca for having broken taillights. A quick aside. It seems to me that tail light problems are the new favorite for pre-text stops. If the cops pull you over and tell you your tail lights are out (or dirty), there is a decent chance they think you are transporting narcotics. Back to the story.

Mazuca's defense lawyer had a pre trial suppression hearing and the judge held that the there was no traffic violation and the Officer wasn't credible. Ergo, the stop was illegal and the seized contraband (meth) was suppressed. But wait.... Mazuca had warrants out for his arrest. The State appeals and loses the first round, but then comes the PDR, and the CCA reverses everyone.

Holding- You already read that, it's at the top. Basically, CCA has created an impossible standard for the defense. The defense now has to prove not only that the cops acted illegally (which, under 38.23 should be enough). But that the police illegally pulled someone over on purpose. Pre text stops (in which the cops want to pull you over and follow you until they spot a traffic violation), are still legal, but it appears that illegal pre text stops can result in suppression, even with a warrant.

Constitutional violations are becoming more of an intent crime. For example, if the police destroy the video in your case, that's ok unless you can show "bad faith". Which, guess, what? That never happens. So in essence, we have yet another exception to the 4th Amendment, and our State's exclusionary rule.

It is campaign season, and in our one-party state strict constructionism has become a judicial virtue. With that in mind, here is the Texas exclusionary rule.

38.23 EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

38.23 is brilliant in it's scope and clarity. However, 38.23 is a living breathing ever-changing statute, from which new exceptions and limitations spring worth with abundance. Now we have the "illegal stop with a warrant" exception. You can't find that in the statute, but that's what judicial activism does. Somehow I don't think the Tea Party is going to be outraged. Which is too bad, the Second Amendment matters, but so does the Fourth.

But hey, we found some meth so now we are one step closer to winning the drug war right?

Abel Assessment belongs on the Junk Science Scrapheap

Fri, 18 May 2012 23:24:45 -0600

One reason Texas convicts so many innocent people is our lax standards for allowing the State to admit "scientific" evidence at trial. Given the State's nearly limitless resources for experts, supply is racing to catch up with demand, whether or not the science is sound or not.

Trial courts are supposed to be the gatekeepers of scientific evidence and limit what the jury can hear. That sounds great in theory, but in practice the State almost always gets in whatever "expert" they designate. It was this atmosphere that allowed the complete bullshit "science" of "dog scent lineups" to pollute our courtrooms.

The latest victim of junk science is Michael Arena. Michael was wrongfully convicted (his "victim" has completely recanted, stating that she was coerced by her mother to lie) of sexual assault, and sentenced to 20 years.

The back story is worth reading and highlights how easily sexual assault allegations can be manufactured to gain advantage in child-custody cases. Michael was a juvenile at the time, and his writ of habeas corpus (basically saying "let me out of jail I'm freakin' innocent!") went to the Texas Supreme Court, instead of the Court of Criminal Appeals (which is no small distinction).

You'd think that when the State's star witness admits to lying that would be enough to get you out of prison. In Texas, not so much. Our State's conviction machine has no reverse gear.

On to the junk science...

One of the areas ripe with pseudo-science nonsense is when "experts" try to guess how dangerous a defendant might be in the future. The truth is, no one really knows what someone is going to do in the future. But the State has unlimited funds to throw around, and an industry has sprouted up to give the State what they want, "future dangerousness" testimony.

In Michael's case, during punishment, an "expert" testified that Michael underwent an Abel Assesment which showed, with 85% accuracy, that Michael was a dangerous pedophile who would more than likely reoffend. The jury took notice and sentenced Michael to 20 years in prison.

What is an Abel Assesment? Basically, an individual looks at pictures on a computer screen. If you look too long at the pictures of children, you're a pedophile. You're probably not surprised to learn that the Abel has a very high error rate. From the opinion...

See United States v. Birdsbill, 243 F.Supp.2d 1128, 1135-36 (D. Mont. 2003) (describing later version of the Abel Assessment's error rates of 21-22% and 32% as "poor" and finding test unreliable); United States v. White Horse, 177 F.Supp.2d 973, 975 (D. S.D. 2001) (stating that 24% false negative on Abel Assessment "does not assist the jury" and finding test inadmissible); State v. Ericson, 13 A.3d 777, 781-82 (Me. 2011) (affirming trial court's exclusion of testimony regarding Abel Assessment and stating that error rate between 21% and 32% raises significant concern about reliability).

The court concluded that the "expert's" Able assesment testimony should not have been allowed, and that the "expert" did not testify truthfully. The case was remanded for a new sentencing hearing.

Unfortunately, this case may not be the death of Abel in Texas, as this case was uniquely focused on juvenile defendants. However, if you are faced with an Abel "expert" make sure your attorney is familiar with the latest research and this opinion.

Kemp Police Department Disbands

Wed, 16 May 2012 10:57:17 -0600

Some old news from last week, the Kemp, Texas police department is being shut down due to budgetary concerns. This isn't the first small town Kaufman County PD officer to face massive layoffs. Last year, almost the entire Combine police force was jettisoned.

How will this affect your Kemp PD criminal case? It depends on where these officers go and if they are available to testify in the future. If not, that could present some challenges for the State. Especially for the typical "pull the car over for innocuous traffic offense, find dope" case. You have a right to confront the witnesses against you, cops included.

In the interim, KSO will take over for Kemp PD.

Dallas Court of Appeals Affirms Kaufman County Drug Conviction

Wed, 18 Apr 2012 10:21:21 -0600

I often have a hard time quickly explaining to my non-lawyer friends exactly how the appeals system is rigged against criminal defendants. Fortunately today's case, Barnes vs. State, crystallizes how the constitutional rights of defendants are effectively waived through nonsense technicalities.

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).

There was a trial on the case, and the State offered a video containing some of the evidence Barnes had earlier sought to suppress. Barne's attorney said he had "no objection" to the video, and why should he? He already objected pre trial and had a hearing on the issue. It should be obvious to all that he had challenged this evidence, lost, and did not have to challenge this evidence again. Check out the perfect catch-22 our appellate courts have crafted to rob defendants of their right to appeal.

At trial, when the State sought to introduce the videotape of the traffic stop containing his statements into evidence, appellant's counsel affirmatively stated, "No objection." When the drugs found in the car were offered into evidence, defense counsel also stated "No objection." And when the State offered the written analysis of the drugs into evidence, defense counsel again stated "No objection." When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object to the admission of the same evidence at trial in order to preserve error, but if the defendant affirmatively states that he has "no objection" to the evidence, he waives any error in its admission. Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008).

When the State hands you evidence in trial you have to say something or the judge will just stare at you and wonder if you are paying attention. So the rule is you are not required to object again but you if you say "no objection" then you waive all the issues you already argued pre trial. You can't stand there in silence, so you really do have to object again even though case law says you don't have to.

The practical function of this system is to uphold convictions and deny defendants the right to hold the State accountable for Constitutional violations. No attorney has a pre trial suppression hearing only to waive all complaints at trial. We've created this legal fiction because it allows our appellate to ignore consitutional violations. Rather than give the defendant his day in appellate court, we tell him he really wanted that unconstitional evidence used against him. Hogwash.

So remember, even though you are not required to object, you really are. Object every chance you get, to everything you can think of.

Dallas Court of Appeals Overturns Prohibited Weapon Conviction

Fri, 30 Mar 2012 05:07:20 -0600

Today's case of the day is Michael Scott Page vs. The State of Texas.

What happened?

Michael was out on bond (agg assault). While on bond Michael told his neighbor he we was going to blow up the courthouse. Michael's neighbor called the police and relayed the details of this conversation. Michael's bond was then declared insufficient (a topic for another post) and an arrest warrant was issued.

The police arrive go to Mr. Page's house and arrest Michael in the front yard. Michael is carted off to jail and the cops then decide to search the house for weapons. An officer testifies that search is out of concern for the safety of Michael and the public. During this search the officers find a pipe bomb and then decide it's time to get a warrant. Michael is convicted for possessing an explosive device and sentenced to 4 years TDC.

Michael's attorney filed a motion to suppress and an appeal is born.

Our issue- Can the cops search Michael's house without a warrant? Can the pipe bomb be used as evidence against him?

The 4th Amendment isn't lacking for clarity, no unreasonable searches or warrant issued without probable cause. Here we had no warrant so the State needs a 4th Amendment exception to save this search, and the conviction.

"The nine most terrifying words in the English language are: 'I'm from the government and I'm here to help.'" Ronald Reagan

Those nine words have turned into no less than two 4th Amendment exceptions; the emergency doctrine and the community care taking function.

From the opinion-

The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011). The entry into a residence by police officers is a "search" for purposes of the Fourth Amendment. Limon, 340 S.W.3d at 756. A warrantless police entry into a residence is presumed unreasonable unless the entry falls within an exception. Id. at 756; Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1996) (op. on reh'g). Two such exceptions are the emergency aid doctrine and the community caretaking or public servant doctrine. Laney, 117 S.W.3d at 860.

Under the emergency doctrine, the Fourth Amendment does not bar police officers from making warrantless entries and searches when an officer has an immediate, reasonable belief that a person within is in need of immediate aid and the officer must act to protect or preserve life or avoid serious injury. Laney, 117 S.W.3d at 861 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). This doctrine deals with, but is not limited to, private residences. Id.

The community caretaking function is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Corbin v. State, 85 S.W.3d 272, 276-77 (Tex. Crim. App. 2002). The officer must be primarily motivated by his community caretaking function and must have a reasonable belief that the defendant needs help. Id. at 277. In evaluating whether an officer reasonably believes a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

These altruistic 4th Amendment exceptions are rotten public policy. Given that there are thousands of felonies on the books, it may behoove the public to reject or avoid law enforcement assistance, even in an emergency, lest you end up facing the business end of our state's criminal justice system.

Holding- The search is no good, conviction reversed.

After reviewing the record, we likewise conclude these facts do not give rise to a legitimate community caretaking function exception to the requirement for a warrant. During the hearing, Phillips testified the sergeant told the officers to "go in the house and get [appellant's] guns for safekeeping." Assuming this is sufficient to show the officers were primarily motivated by their community caretaking function, we then consider the second prong of the Corbin test: whether the officers' beliefs that appellant needed help were reasonable. Because appellant had been removed from the house and was en route to jail before the officers began searching his house, there is clearly no evidence to show appellant was in distress, needed assistance, or presented a danger to himself or others. Applying these factors, we conclude the officers' exercise of their community caretaking function was not reasonable. The trial court abused its discretion by denying the motion to suppress.

Stopping a potential pipe bomber is a worthy cause, this isn't just another meaningless dope bust. That doesn't mean the war on drugs isn't at fault here. Prohibition poisons everything.

One of the opportunity costs of our failed drug war is that cops don't have enough time to solve real crime. Imagine if every drug task force was instead focused on illegal weapons. Officers would have the time to thoroughly investigate every potential pipe bomber, gather evidence, and secure a warrant before searching a residence.

Dallas Appeals Court Reverses Retaliation Conviction

Tue, 27 Mar 2012 19:42:42 -0600

Today's Dallas Court of Appeals case of the day is- Lowell Merritt vs. The State of Texas!

What happened? From the opinion.

The events leading up to appellant's indictment on a felony retaliation charge began in July 2007 when appellant's neighbor reported that appellant "cussed" his wife. After reviewing the report, a Collin County sheriff's deputy filed a disorderly conduct complaint against appellant in the Precinct 2 Justice of the Peace Court of Terry Douglas.
While his case was pending in the county court, appellant filed separate pro se lawsuits against his neighbor, the deputy sheriff who filed the complaint, and a witness at the justice court trial, complaining about their conduct in the criminal prosecution. Appellant filed the suits in Judge Douglas's JP court and sought to recuse the judge. Judge Douglas denied the motion to recuse, and after considering the defendants' motions for summary judgment, rendered take-nothing judgments. T
Appellant then filed the lawsuit against Judge Douglas that is the basis of this criminal prosecution. In his suit, filed in county court, appellant alleged Judge Douglas violated his rights by refusing to recuse himself and, as damages, sought the amount he sought in his earlier lawsuits as well as the sanctions ordered by Douglas. Days later, Robert Davis, an attorney retained by Collin County to represent Judge Douglas, sent a letter to appellant advising him that Judge Douglas was immune from suit and warning that if appellant did not dismiss the suit, he would seek sanctions.
Appellant was subsequently indicted on a charge of retaliation. The indictment alleged that appellant "intentionally and knowingly harm[ed] and threaten[ed] to harm Terry Douglas, by filing a frivolous lawsuit against him . . . in retaliation for and on account of his service and status as a public servant, to-wit: Justice of the Peace: Precinct Two."

Basically, this defendant is a jackass and a horrible attorney. It's not a crime to suck as an attorney. (Fill in joke here). And given the explosion of both pro se litigation (thanks legal zoom) and criminal statutes (thanks Texas GOP), upholding this conviction would have set a dangerous precedent.

How did the court reach their decision? Because it's not against the law to file a junk lawsuit.

Neither side argues that the act of filing of a frivolous lawsuit is "criminal"; rather, the issue is whether the act is "tortious." The penal code does not define "tortious." Where a statutory term is not defined by the Legislature, we ascribe to that term its ordinary meaning. Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993).
The term "tortious" is defined by Webster's Dictionary as "implying or involving tort for which the law gives damages." Webster's Third Int'l Dictionary 2413 (1981). A tort is defined as "a wrongful act for which a civil action will lie except for one involving breach of contract." Id. Similarly, Black's Law Dictionary defines "tortious" as "[w]rongful; of the nature of a tort." Black's Law Dictionary 1489 (6th ed. 1990). Further, tort is defined as "[a] private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages." Id.
The State argues that filing a frivolous lawsuit is a "tortious act." Specifically, the State argues that chapters 9 and 10 of the Texas Civil Practice and Remedies Code both "prohibit filing a pleading or motion that is not based on existing law or a non-frivolous extension of existing law." The State then concludes that "[b]ecause filing a frivolous lawsuit violates a statutory tort, it is a tortious and thus unlawful act." We cannot agree.
Chapter 9 of the civil practice and remedies code authorizes sanctions for the filing of groundless pleadings and claims in bad faith or for an improper purpose, such as harassment or to cause unnecessary delay. See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001-.014 (West 2002). Chapter 10 allows for sanctions for filing pleadings and motions without legal or evidentiary support or for improper purpose. See Tex. Civ. Prac. & Rem. Code Ann. § 10.001-.006 (West 2002).
In other words, the conduct prohibited by these statutes - filing frivolous pleadings or motions - is sanctionable, not tortious. Thus, contrary to the State's argument otherwise, filing a frivolous lawsuit is not a statutory tort under chapters 9 or 10. The State does not argue that filing a frivolous lawsuit can be the basis for any other statutory or common law tort. Because filing a frivolous lawsuit is not "tortious," it is not "unlawful" under the penal code definition; consequently, we conclude the alleged conduct in this case cannot serve as the basis for a criminal charge of retaliation.

The reason our State's criminal justice system is so broken is the asymmetry of responsibility and consequences. State's actors are the least accountable of all members of society. If you are frivolously arrested, charged, or even wrongfully convicted there is a near 0% chance any State actor will face the slightest inconvenience.

Citizens on the other hand, face unlimited punishment and destruction for their mistakes. If you want to really reform the criminal justice system take a cue from tort reform. Enact some loser pays legislation, allow for summary judgments for crap cases, and cap the damages defendants face for negligence.

Students loans are the new housing bubble, Law School is the equity line of credit on your McMansion

Wed, 14 Mar 2012 11:11:03 -0600

You can't say you weren't warned. Law school is a horrible idea right now. The industry is being outsourced and automated into oblivion. Every law job that doesn't require a real person to appear in front of another real person is being outsourced or given to the lowest bidder. How bad is the legal market? Even the mainstream media has noticed.

Here is the latest from CBS-

University of Colorado law professor Paul Campos has studied the legal job market and found that it's been shrinking because in part because of outsourcing and computer automation. He estimates that of the 45,000 law graduates each year, almost 45 percent can't get jobs that require a law degree.
"Many of the people who are going to law school right now are never going to be lawyers," Campos said.

Campos says that almost all law schools report employment rates of 80 percent or more by including non-legal, part-time and temporary jobs. On average, the real rate is about half that.

"Used car salesmen can't get away with the kind of claims that law schools get away with all of the time," Campos said.

To be clear- in the history of lawyering there has never been a worse time to go to law school. Stop if you've heard this before, but it's market distortion created by the federal government.

The feds guarantee student loans which allow law schools to increase tuitiion beyond what the market would bear. Private law schools have responded by raising tuition 73% over the last ten years. Given how cheap it is to provide a law school education (profs use the same material year after year, no labs required etc) it's a testament to how even "noble" institution of higher learning are still self interested market players, seeking to maximize revenue. The final insult, it's nearly impossible to discharge a student loan.

Are you considering law school? Then you should be smart enough to know better.

Economics of Prohibition- Video

Mon, 12 Mar 2012 19:45:16 -0600

What's the definition of insanity again?

DPS tracks your prescription information

Mon, 12 Mar 2012 16:11:18 -0600

The most frightening Texas law enforcement story of the day comes from CBS in Dallas. It appears that DPS has an online database that stores your prescription information. DPS has been hacked in the past, one can assume it's only a matter of time before this database is also breached. Maybe we can finally get the answer to what caused this.

This wholesale invasion of privacy is, of course, another tentacle of our failed drug war, specifically the scourge of "doctor shopping" that keeps up the Prohibitionist busybodies at night. To prevent a few addicts from getting pills, we now have allowed the government to monitor everyone's medical history, forever. It's the usual "everyone is guilty until proven innocent attitude" we see with alarmingly regularity these days. On the list of dangers that keep me up at night, the fact that my neighbor might be doctor shopping is pretty damn low. Certainly not high enough that I want DPS in the room with me and my doctor.

Remember, next time you tell your doctor that you are in pain, or suffering from depression or anxiety, this information can and will be used against you.

New Dallas County Deferred Adjudication/Non Disclosure Admonishment

Thu, 01 Sep 2011 12:45:35 -0600

"Will this be on my record?" is a common client concern. After all, in the information age employers, friends, enemies et al, all have access to your complete criminal history with only a few clicks of the mouse. Criminal cases can leave a permanent scar. You can spend a lifetime explaining that misdemeanor pot charge you got in your 20's. Ergo, it's important the before you plead guilty and accept that "great" plea offer, you understand the long term effects on your criminal history.

Unfortunately, the idea that a deferred case can be expunged is probably the most common erroneous legal advice given. (Disclaimer- class c/traffic tickets can be expunged after deferred). Many defendants plead guilty thinking, again erroneously, that since a deferred case is dismissed upon a succsefful completion of probation, and leaves no conviction, they should be entitled to an expunction.

Dallas County is seeking to end the confusion with a new written admonishment, which lays out the expunction/non disclsoure ramifications of a deferred plea. I OCR'ed the text so you don't to read the PDF.

It reads as follows-

COURT'S ADMONISHMENT ON RIGHT TO ORDER OF NONDISCLOSURE lf you have been placed on deferred adjudication community supervision and subsequently receive a discharge and dismissal, and you satisfy the requirements set forth below, you may petition the court for an order ofnondisclosure pursuant to Section 411.08I of the Texas Govemment Code, Except as provided below, you may petition the court regardless of whether you have been previously placed on deferred adjudication community supervision for another offense. After notice to the State and a hearing on whether you are entitled to file the petition and whether issuance ofthe order is in the best interest ofjustice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense for which you were placed on deferred adjudication, A criminal justice agency may disclose criminal history record information that is the subject ofthe order only to other criminal justice agencies, for criminal justice or regulatory licensing purposes, an agency or entity specifically listed in Section 41 1.081, or the person who is the subject ofthe order.
You may petition this court for an order ofnondisclosure on payment ofa $28 fee to the clerk ofthe court in addition to any other fees that generally apply to the filing ofa civil petition. The petition may be made only on or after: (I) the discharge and dismissal, ifthe offense for which you were placed on deferred adjudication was a misdemeanor other
than a misdemeanor described by number (2) below; _t (2) the second anniversary ofthe discharge and dismissal, if the offense for which you were placed on deferred adjudication was a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46, Penal Code; or
(3) the fifth anniversary of the discharge and dismissal, if the offense for which you were placed on deferred adjudication was a felony.
You are entitled to petition the court for nondisclosure only if during the period of the deferred adjudication community supervision for which the order ofnondisclosure is requested and during the applicable period described by number (I). (2), or (3) above, as appropriate, you were not convicted of or placed on deferred adjudication community supervision for, any offense other than an offense under the Transportation Code punishable by fine only. You arc not entitled to petition the court if you were placed on deferred adjudication community supervision for or have been previously convicted or placed on any other deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Penal Code Section 20.04 (Aggravated Kidnapping), regardless of whether the offense is a reportable conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;
(3) an offense under Penal Code Sections 19.02 (Murder), 19.03 (Capital Murder), 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual), 22,041 (Abandoning or Endangering a Child), or 25.07 (Violation of Court Order or Conditions ofBond in a Family Violence Case); or
(4) any other offense involving family violence, as defined by Family Code Section 71.004.

You are considered to have been placed on deferred adjudication community supervision if, regardless of the statutory authorization:

(1) you entered a plea ofguilty or nolo contendere;
(2) the judge deferred liirther proceedings witltout entering an adjudication of guilt and placed you under the supervision of the court or an officer under the supervision ofthe court; and
(3) at the end ofthe period of supervision thejudge dismissed the proceedings and discharged you.

Got that? If you want to plead guilty, and take deferred in Dallas you have to sign off that you understand exactly what you can, and can't do to keep this event from public view. While we are on the topic, deferred reform is an area that needs more attention. Too many Texans are held back by penny ante bullshit criminal cases. That pot case in your twenties shouldn't last a lifetime. I get a lot of inquiries for expunctions/non disclosures, and after I tell them they don't qualify I encourage them to contact their representative, and let them know how they feel about our state's inane expunction laws. To that end the Texans for Justice and Legal Reform are one organization working to fix the problem. Their website sucks, but it's a good place to start.

Texas DPS Driver License Eligibility Lookup

Mon, 25 Jul 2011 11:44:16 -0600

I get a lot of clients who have driver license issues. Most can't get beyond the DPS run around and walls of beuracratic nonsense and get one simple question answered- What do I need to do to get my license back?

Which is why this new link is so ecxiting. DPS has a new site so you can out the status of your DL, make payments, and work towards lifting that suspension.
.
https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

Skip the lines and the glacial inertia at your local DPS office, and let a computer do what most DPS employees can't. Actually help you get your license back.

Texas Dog Bite Law 101

Mon, 11 Jul 2011 12:33:32 -0600

I was attacked by a dog two days ago. Here's the short version. I was doing my usual walk to the park and back when a giant lab mix (let's call him Kujo) took two bites out me. I fell and twisted my knee, and went to the ER for treatment.

I got a tetanus shot and some hardcore antibiotics (dog's mouths are not clean places). I'm awaiting word on whether Kujo had rabies or not (probably not since it was someone's pet, not a stray). My friendly ER nurse informed me that the rabies vaccination isn't done through the stomach anymore, but it still hurts like hell and requires multiple doses and follow up treatment.

Of course whenever a dog bites an attorney the first question is "Are you going to sue?" I'll let my partner, Scott Gray, make that decision. I'm a criminal lawyer, so let's explore Texas Dog Bite Law from that angle.

I have never seen a prosecution for a dog attack, but dog owners should be aware the actions of man's best friends can create criminal liability for the owner if and when Fido attacks.

From the Health and Safety Code

Sec. 822.005. ATTACK BY DOG. (a) A person commits an offense if the person is the owner of a dog and the person:
(1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner's real property or in or on the owner's motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person; or
(2) knows the dog is a dangerous dog by learning in a manner described by Section 822.042(g) that the person is the owner of a dangerous dog, and the dangerous dog makes an unprovoked attack on another person that occurs at a location other than a secure enclosure in which the dog is restrained in accordance with Subchapter D and that causes serious bodily injury, as defined by Section 822.001, or death to the other person.
(b) An offense under this section is a felony of the third degree unless the attack causes death, in which event the offense is a felony of the second degree.

Basically, if your negligence led to the dog attack, or if you have a "dangerous dog" that attacks someone; you can not only be sued, but sent to jail.

How do you know if you're dog is a "dangerous dog"? If the animal control officer tells you, or your dog makes an unprovoked attack that causes any injury (not just an SBI).

So, from now on, Kujo is going to be labeled a "dangerous dog", which as far as I can tell is worse than the sex offender registry in that Kujo can never have that label removed.

Could this dog's owner be prosecuted? Not unless he knew Kujo was dangerous.

I was attacked on the sidewalk of Kujo's house, so presumably the first section wouldn't apply. And I'm doubtful my injuries meet the standard for serious bodily injury. To be an SBI requires the injury cause either death, or a substantial risk of death, serious permanent disfigurement or impairment. My knee is swollen, and the Xray turned out negative, but the doctor was optimistic I woud recover in the near future (if I'm not better in a few days I'm supposed to get a MRI). I don't think I'm dying, and hopefully I don't have rabies. So SBI doesn't appear to apply to my injuries.

Don't owners should be careful, especially if your canine has a history of biting or attacking.

Finally, despite the public outcry over my vicious dog assault, I don't want any idiot politician to enact "Robbie's Law", or any knee jerk dog bite legislation in my name. We have enough criminal laws as it is, and I don't want my tragedy be used to further the police state in Texas.

MADD admits new Tuff DWI law won't work

Sat, 04 Jun 2011 17:15:08 -0600

Defense lawyers are not big fans of MADD, or any pro police state organization for that matter. However, one thing I will say is that their public policy liason, Bill Lewis, is an honest guy. DMN ran a round up of the various DWI bills this session. Most died sine die, however the lege did pass one new Tuff on DWI enchancement that will leave first time DWI offenders open to a greater range of punishement if they have a bac over .15 (yet another reason to NEVER take a breath test).

Won't longer sentences stop people from drinking and driving? Shouldn't we all celebrate this life saving measure from the lege? Not so much says MADD. From DMN-

The... act is not a bad bill, Lewis said, "but as for stopping drunk driving, the bill is just not going to do that much."

Exactly the point DWI observers in Texas have been making for years now. We are well past the point of diminishing returns with enforcement. I can't think of what other freedom, liberty, or privacy that is left to sacrifice to the DWI police state. We need a systemic change in the way Texans get to the places they drink, not longer sentences for first time offenders.

This story just keeps on giving. One of the State's leading DWI prosecutors, Richard Alpert, was asked about the death of the DWI "deferred" bill. The "deferred" bill would have most likely led to more plea bargains, but less DWI convictions overall.

The bill, which was supported by prosecutors, defense attorneys and MADD, "had a lot of momentum," Alpert said, but the possible loss of money for the state from surcharges that accompany convictions may have doomed it. "This wasn't the year to be cutting into sources of revenue," he said.

Intoxicated drivers are just another revenue source, and the State has made themselves financially dependent upon same defendants they supposedly loathe. The State has little incentive to stop all drinking and driving. In fact, all the incentives are for the State to maximize intoxicated driving (which they are doing a great job of through suburban sprawl/zoning and a fierce opposition to public transporation).

DPS has their misleading "Drink. Drive. Go To Jail" billboards. When will the Comptroller begin a "Please Drink And Drive, Texas Needs The Cash" campaign?

Kaufman County DWI Court-

Wed, 27 Apr 2011 11:40:06 -0600

Facing a DWI charge in Kaufman county? Have a serious drinking problem and/or a history of alcohol related offenses? DWI court may be in your future.

What is the Kaufman County DWI court? This is from a handout I found in CC2. I think the DA's office made this although I can't be positive as no authorship is claimed.

"The Kaufman County DWI court is a twelve month minimum program that integrates local criminal justice resources, case management, and alcohol abuse treatment to rehabilitate targeted repeat DWI offenders. There are two aspects of the program, the Court side, and the Treatment side and there are three phases to the court side. As a participant progresses through the phases, the intensity of the program lessens."

Phase I
- Weekly court meeting
- Group meeting twice a week
- Two AA (or similar) meeting a week
- Weekly probation meetings

Phase II
- Court meeting on the 1st, 3rd, and 5th week of the month
- Two AA (or similar) meetings per week
- Group meeting once a week
- Meet with probation every other week

Phase III
- Attend court once a month
- Aftercare group meeting once a month
- Two AA meeting/week
- Meet with probation every other week

Who is eligible?
- Over 17
- Reside or work in Kaufman county (there may be some leeway with this, just don't live in Houston and expect to be accepted)
- Have no current holds (that means TDC can't be waiting to pick you up)
- Physically and mentally capable of participating in the program
- Eligible to be on probation, or have your probation extended
- Must be alcohol or drug dependent

Disqualifications
- Severe mentally illness
- Prior conviction as an "abusive offender" (I think this means crimes of violence)
- Prior DWI court participant
- Prior felony conviction within 10 years of the immediate case

Why do people enter DWI court?
The carrot in this approach is that defendants get a better plea deal if they enter the program. For example, felony defendants get a shorter probation period (and avoid prison), but they have to sign up for some serious life changes.