Dallas Criminal Justice

December 1, 2013

What’s the law on Lesser Included Offenses in Texas? Or Rockwall Agg Assault Conviction Upheld by the Dallas Court of Appeals

Lesser included offenses can be an important part of a criminal jury trial. Some offenses, like misdemeanor DWI, don’t have any lesser included offenses. Others, like Aggravated Assault, are full of lesser included opportunities.

What is a lesser included offense? Let’s take an aggravated assault case. The difference between an aggravated assault (felony) and a misdemeanor assault is “serious bodily injury”. Aggravated assaults require that someone suffer a serious bodily injury, where misdemeanor assault just require some injury. So if you are on trial for aggravated assault, and you want to argue over whether the injury was “serious”, then you can ask that the jury be allowed to consider the lesser included offense of assault. That means, instead of just deciding if the defendant is guilty or not guilty of aggravated assault, the jury could consider finding the defendant guilty of only a misdemeanor assault. Confused? That’s ok, this isn’t an exciting topic for the lay person.

This being Texas, we do all sorts of mental gymnastics to uphold convictions on appeal. So if you want to appeal a conviction because the trial judge would not allow a lesser included instruction, here is how the court will decide that issue (spoiler alert, they will rule against the Defendant, but this is how they will rule against the Defendant).

December 1, 2013

You should join DFW NORML

by Robert Guest

I went to my first DFW NORML meeting last night and came away very impressed. Really good speakers and a lot of very friendly and enthusiastic supporters. Over 120 people showed up on a holiday weekend, which is something I wouldn’t have thought possible 10 years ago.

When I first started blogging legalization and reform of marijuana laws was still not a mainstream topic. Locally in Kaufman County I know at least a few people thought it was a strange issue for me to champion. Back then we had a few medical marijuana states, but no where near the momentum we have now. It’s rare now that I discuss marijuana prohibition with anyone under 40 who thinks it’s a successful program that should be continued. The game has changed folks, and momentum is on the side of freedom and growing every day. Much more media attention on the issue, polls are showing that political majorities across the country support reform, and the scientific evidence for marijuana’s medicinal qualities is too strong to question at this point (unless you’re the DEA).

That’s the good news. The bad news, we still live in Texas and authoritarian social conservatives still exert too much influence on the political process. We can fix things in the Lone Star State, but like any political movement more people need to get involved. The best way to do that is to join your local NORML chapter.

November 29, 2013

Accountability, Memory, and the Dallas Police Shooting of Bobby Bennett

by Robert Guest

If you work in criminal justice long enough you see situations in which rules are broken often. Defendants break rules and face the unbridled wrath of the criminal justice system (which seeks to take their money, time, and sometimes freedom). But what happens when the Government breaks rules? More often than not, the Government changes the rules so that they don’t get caught again.

DPS is a good example. The “scientists” at DPS are notorious for rewriting the breath test guidelines whenever the rules become too burdensome or difficult. That is, whenever the system can not clear the embarrassingly low hurdles it sets for itself to insure credibility, it moves the goal posts. Rather than trying to say, quit breaking rules, the Government forgives itself and moves on. It’s similar to the “harmless error” analysis that our pro-conviction authoritarian judicial activist appellate courts have taken. The Defendant makes a mistake and pays with his freedom, the Government violates the Constitution and it’s “no harm no foul” (with former prosecutors deciding what “harm” is”). The only truly accountable actor in society today is the individual, the Government need not be bothered by pesky things like laws, rules, or the Constitution. But I digress.

The latest example comes from the Dallas Police Department. Bobby Bennett is mentally ill and his mom called the cops for help (a larger issue we will skip is the intersection of the mental health and criminal justice system). The shooter, DPD Officer Cardan Spencer, lawyered up and waited to give a statement about what happened (even cops know not to talk to cops if you are suspected of possible wrongdoing). Meanwhile Spencer’s partner at the scene, Christopher Watson, gave a statement that said Bennett “aggressively approached” Spencer with a knife. Bennett was arrested and charged with aggravated assault.

November 20, 2013

A fool for a client, or why you shouldn’t represent yourself if you are facing a life sentence in Kaufman County

by Robert Guest

A recent appeal from Kaufman County highlight the dangers of self representation in criminal cases. In misemeanor cases it’s alarmingly common for defendants to walk into court and sign away their right to counsel. These pro se defendants talk to the prosecutor and almost always end up accepting whatever plea bargain is offered. It’s common for these defendants to later try and change these guilty pleas when they realize that a) this criminal case is on their record forever b) they weren’t guilty and they wished they hadn’t pled to the charge or c) they realize they got a horrible deal and now they want to renegotiate.

For felony cases it is less likely that a defendant will proceed sans counsel. For felony jury trial it is even more rare. It is the height of hubris for someone to think that they can walk in and pick twelve jurors when they are facing both a skilled and experienced prosecutor and years behind bars. You may not be surprised to know that some felony defendants are not known for making great life choices, and hence we have the occasional pro se jury trial. It’s usually a train wreck of sorts, and the defendant always loses.

When the defendant loses they often ask their appellate lawyer to try and get the case reversed because they realize that going without a lawyer was a horrible idea. Which leads us to our case of the day-

November 3, 2013

5 Ways To Help Your Criminal Case

by Robert Guest

Criminal defense clients come into consultations with a lot of anxiety about the process, and they want to know what they can to do to help their case. I get it, being arrested is a traumatic experience and you have a strong impulse to “do something” to make this better. Focus that energy and you can your defense lawyer do his/her job. Here are 5 ways to help your criminal case.

1. If this is a drug or alcohol case, let’s work on those issues now.

First a libertarian disclaimer- I don’t think anyone should be arrested for drug possession. I find recreational drug use morally neutral. However, the State disagrees with my view and wants to arrest everyone every time they use drugs.

October 31, 2013

What’s the law on Failure To Appear in Texas?

by Robert Guest

Good question. One of the ways our criminal justice system extorts guilty pleas out of defendants is by wasting their time. The biggest time waste in the criminal justice system is requiring Defendants to show up at every court setting. It’s most ridiculous is misdemeanor cases and it’s a huge loss of productivity since most defendants are missing many days of work just to show up for their pot case. It’s not unusual for Defendants to be fired for going to court. The situation varies by county, in Dallas county your lawyer can show up for most misdemeanor settings. In Kaufman County the Defendant has to appear at every setting, with one exception.

About once or twice a month we will get a client who needs to move a court date and can’t make it. This is always a dangerous proposal and we advise them that it’s up to the judge to allow a case to be reset sans appearance. If a client chooses to just not show up and we haven’t worked it out with the court, then the Defendant can be charged with failure to appear.

What is failure to appear in Texas?

October 30, 2013

Online Solicitation of Minor Statute- 33.021(b)(1) Held Unconstitutional

by Robert Guest

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.

September 11, 2013

Dallas Court of Appeals Upholds Online Solicitation Conviction

by Robert Guest

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.

August 31, 2013

“No-Refusal” Labor Day Weekend In Fort Worth

by Robert Guest

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.

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.