Criminal Appeals

February 2, 2020

Must the Judge warn me about the punishment range before a defendant pleads guilty?

In law, must and shall are important words. Must and shall indicate that an action is required, it has to happen, it is a part of the process, proceeding, or hearing that can’t be ignored. Contrast that with “may”, which implies that it doesn’t matter if the thing happens or not.

One thing that is supposed to happen in a criminal case, is that the Judge must inform the defendant about the range of punishment before he pleads guilty. That is, the defendant must know how much time he’s look at before he says “I’m guilty”. Here is the shall if you want to read it-

Texas Code of Criminal Procedure 26.13

January 23, 2020

What is a Stacked Sentence in Texas?

by Robert Guest

What is a stacked sentence?

Good question. A stacked sentence is one in which two sentences are to be served consecutively or one after another. So if Bob has two cases for possession, and gets 5 years TDC in each case, then a stacked sentence would require him to serve these sentences back to back.

Contrast that with a concurrent sentence, which lawyers call “CC”. If Bob has two charges for possession and gets the same 5 years in each case, then both sentences run at the same time. So Bob does one 5 year sentence.

February 26, 2019

Appealing A Conviction For Hearsay

by Robert Guest

Elections matter, and in Texas we elect appellate judges. We’ve been electing extremist conservative authoritarians for a few decades now. The result is that even when the State cheats at trial or a trial judge makes a clear mistake, it’s nearly impossible to get a conviction overturned. Today we are going to look at hearsay. What if you are convicted at trial, and the State used hearsay to help them convict? (Spoiler alert, it’s not going to be good for the defendant on appeal).

What is hearsay in Texas?

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted and is inadmissible unless a statute or rule of exception applies. TEX. R. EVID. 801(d), 802.

February 4, 2019

DWI Dismissed? You still might not get the case expunged

by Robert Guest

Most people assume that the criminal justice system in Texas is fair, or at least makes sense. It’s only when they get arrested do they discover how FUBAR this “justice” system can be. Here is one example, say you get arrested for a DWI, you end up pleading to a traffic ticket, and the State dismisses the DWI case. You’d think you could have that DWI case expunged right? WRONG.

The Dallas Court of Appeals recently ruled on that very issue in No. 05-18-00348-CV.

The Defendant was arrested for DWI in Gillespie County. As part of a plea bargain, the DWI was dismissed and the Defendant pled guilty only to illegal parking. Later the Defendant wanted this DWI off her record, after all, it was dismissed so that seems reasonable right? Yeah, not so much.

January 2, 2015

Ignorance of the law in no excuse, unless you’re a cop

by Robert Guest

One of the most frustrating aspects of criminal defense work is the double standards that abound between what we expect of government (cops and prosecutors) and what expect of citizens. Which leads us to the case of the day…..

Today’s SCOTUS disaster is Heien vs. North Carolina. The issue was- Can the police detain you for something that is not illegal, if the police “reasonably believe” you have broken the law?

The answer is a resounding 8-1/”Holy shit what happened to the liberal justices?!”/”Hell YES they can!” ruling.

August 3, 2014

(Non-Racial) Profiling is Legal in Texas, Don’t Be a Victim

by Robert Guest

In Texas our pro conviction appellate courts have blessed the practice of law enforcement profiling drivers and investigating routine traffic stops as drug trafficking. This practice involves an officer deciding that you are a drug dealer and then following you until you commit a traffic violation.

I thought racial profiling was illegal in Texas?

It is. But to get anywhere with that you an officer honest or dumb enough to testify that race was a factor in his investigation. LEO learns quickly to keep those thoughts to himself. Our numerous traffic laws allow great cover for profiling. DPS knows to just follow who they want to stop until they can find some evidence of a traffic violation. That’s considered great police work in Texas. We allow and encourage non-racial profiling. Which means a DPS Trooper can list any reason but race as a reason to follow you and wait for a traffic violation and then search for drugs.

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

May 14, 2014

Speedy Trial Rights in Probation Revocation Cases

by Robert Guest

It’s strange to talk about speedy “trials” in probation revocation cases, because a probation revocation hearing is nothing like a criminal jury trial. For example, in probation cases your only audience is the judge, you have no right to a jury, and the burden of proof is much lower to revoke (preponderance) than convict (beyond a reasonable doubt). Still, a person facing a motion revoke probation has a right to a speedy trial, or hearing. A recent case from the Dallas Court of Appeals addressed this issue. Today’s case of the day is

No. 05-13-00371-CR GEORGE GUO, Appellant v. THE STATE OF TEXAS, Appellee

So what happened to Mr. Guo?

May 2, 2014

CCA- Prosecutors can “forget” to follow Discovery Orders in Texas

by Robert Guest

Remember last week’s post about a DWI case where the State violated a discovery order and hid evidence from the defense and violated a discovery order that required them to turn over evidence in a timely manner? If you don’t, here’s my post about it. Long story short, the Dallas Court of Appeals said it’s ok if the State ignores a court order when it comes to discovery and doesn’t turn over evidence to the defense on time.

Not to be outdone, our state’s highest criminal court, the Court of Criminal Appeals, ruled on the same issue recently in a different case, and guess what? They came to the same conclusion, if a prosecutor hides evidence or “forgets” to turn over evidence and violates a court’s discovery order, that’s fine.

The purpose of our criminal appellate system in Texas is to uphold a conviction at all costs. It’s the reason that our appellate courts bend over backward to say a defendant “waived” all objections on appeal, while at the same time our appellate court allow (if not outright encourage) the State to ignore discovery orders, because the system wants the conviction above all. The asymmetry of accountability between the State and Defendant is mind boggling.

April 24, 2014

What Happens When the State Violates a Discovery Order in a DWI case?

by Robert Guest

One reason we needed the Michael Morton Act (which improved on our State’s horrible discovery rules in criminal cases) is that the State was hiding evidence which convicted innocent people. One problem with the Michael Morton Act, and the prior discovery rules is that there is no penalty if the State fails to turn over evidence, and then chooses to surprise the defense at trial with secret evidence. Let’s contrast this situation to the standard that we hold defendants, in which they are penalized at every stage of a proceeding for the slightest error. Defendant has work and misses a court date? Warrant! Defendant objects to the wrong subarticle of the Code of Criminal Procedure, that issue is waived on appeal! They created a new board certification for criminal appeals in Texas. But you don’t have to be an appellate genius to guess the outcome of any criminal appeal. 95% of the time whatever violations of the evidence rules, code of criminal procedure, or Constitution will be overlooked if the court of appeals can uphold a conviction. That’s the purpose of appellate courts in Texas, to uphold criminal convictions, and to reverse judgments for damages against Defendants in civil cases.

This leads me to our case of the day- Laura Sanders vs State of Texas

What happened?