Criminal Appeals

November 10, 2008

Dallas Court of Appeals Case of the Day- Objection!

Texas appellate courts have a longstanding tradition of throwing out issues on appeal because the defense didn’t object correctly at trial. The law is- to raise an issue on appeal you must specifically object to that issue at trial.

It’s a logical fallacy to believe that a defendant is intentionally waiving an error at trial because his attorney doesn’t make the perfect objection. However, that is the law.

That brings us to the case of the day- Unique Elmore vs. State.

November 5, 2008

Court of Criminal Appeals- Don’t Rap About Murder, If You’re On Trial For Murder

by Robert Guest

A new case from COCA shows why it’s best not to write down your feelings in jail. Especially if those feelings are violent rap lyrics, and you are on trial for murder.

Such were the facts from Mendoza vs. State, which was handed down today. The defendant was found guilty of murder. During punishment the State offered numerous rap lyrics found in the defendant’s cell. The issue was whether these lyrics were relevant, and if the State could prove the defendant wrote them.

Here is a sampling of what the jurors read-

October 30, 2008

Ineffective Assistance of Counsel

by Robert Guest

You had a trial, you were found guilty, and your defense lawyer didn’t meet your expectations. She may have slept through trial, been drunk, or failed to present any evidence at all. What remedy does a defendant have for such a situation? An appeal or Writ claiming Ineffective Assistance of Counsel.

Ineffective Assistance of Counsel

If you want to argue IAOC on appeal your lawyer’s performance must have violated constitution standards. For this the Texas courts apply a test from the Strickland vs. Washington case.

October 17, 2008

Dallas Court of Appeals; Appealing Your Sentence

by Robert Guest

I read most of the new criminal opinions from the Dallas Court of Appeals. Many defendants want to appeal not just their trial, but their sentence. A common example is a defendant who goes to the judge for punishment and receives a long jail sentence instead of probation.

The defendant will then claim the sentence is cruel and unusual punishment or that the judge abused her discretion. Ergo, the sentence is unconstitutional and should be changed.

Week after week I see these appeals denied for the same reason. The defendants do not object to the sentence when it is pronounced.

October 6, 2008

Are Dildos Illegal in Texas (again)?

by Robert Guest

Texas has some stupid laws. Unfortunately Texas also has legislators who lack the courage or wisdom to repeal stupid laws. Instead, Texans must rely on federal courts, or even the Supreme Court to declare our stupid laws unconstitutional.

One such stupid law bans the “promotion” (sale) of dildos.

§ 43.23. OBSCENITY. (a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.