Dallas Criminal Defense Lawyer Blog

February 4, 2019

DWI Dismissed? You still might not get the case expunged

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 15, 2019

Kaufman County Bail Board Approved Bond Companies

by Robert Guest

Kaufman County is growing and in anticipation for reaching the 110,000 person mark in the next census, created a bail bond board. The board has approved the following companies to write bonds in Kaufman County. If you have a friend or loved one stuck in the Kaufman County jail, or the Forney jail, you need to call someone below for bail, and call us for criminal defense.

AAA Bail Bonds

972 932-1800

January 4, 2019

Can I get a CHL with a DWI conviction?

by Robert Guest

Texans love guns. We love booze. We live in a state with crappy public transportation. The result? A lot of people with concealed handgun licenses (CHL) get arrested for DWI in Texas. And a lot of people who want to get a CHL have a DWI conviction on their record.

The answer is no, you can’t get a CHL after a DWI conviction, at least for a while.

A misdemeanor DWI conviction will disqualify you from getting a CHL for a period of 5 years. Don’t take my word for it. Here is a DPS statement on the subject

January 2, 2019

Why do innocent people plead guilty? Ticket edition.

by Robert Guest

Much has been written about why innocent people plead guilty to serious charges. Basically, it’s because the possible sentence and penalties (prison/fines) for going to trial are so great that the risk-averse will avoid trial when possible. But why do innocent people plead guilty when the stakes are low? Like Class-C misdemeanor low? That’s a simpler explanation, the cost of fighting the case is so much higher than the penalty, that most won’t bother trying to avoid the penalty.

Example- You are involved in an argument with a neighbor over loud fireworks on New Year’s Eve. Neighbor says you pushed him, you tell the cops that Neighbor fell down because he was drunk. The police show up, don’t know who to believe, and write you a ticket for assault since you aren’t claiming the neighbor did anything illegal. The police would probably prefer to not write any citations, but they are worried that the next time you guys argue someone might get hurt, so this creates a record of events and is a decent way to CYA the situation in case of future conflict.

Now you are facing a Class C Assault By Contact in your local Muni Court. Too many local municipal courts in Texas are run as profit-making ventures. Cities hire Municipal court judges and prosecutors (city attorneys), and often do so with the goal of maximizing fines (revenue).

September 12, 2018

What is a Restitution Hearing?

by Robert Guest

In Texas, many defendants are ordered to pay restitution as part of their sentence. But what happens if the parties can’t agree on the amount of restitution? For example, if Joe Defendant is guilty of assaulting Vince Victim, how much should Vince get for his medical bills and treatment? Or pain and suffering? What about physical therapy or the cost of gas for driving to the doctor’s office?

In Texas a crime victim has a statutory right to restitution. See Tex.Code Crim.Proc.Ann. art. 42.037 (West 2018). This right has some important limits. (1) the restitution ordered must be only for the offense for which the defendant is criminally responsible; (2) the restitution must be only for the victim or victims of the offense for which the defendant is charged; and (3) the amount must be just and supported by a factual basis in the record. Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014).

If the parties can not agree on an amount of restitution then the trial court must resolve any disputes. Tex.Code Crim.Proc.Ann. art. 42.037(k). At a restitution hearing, the standard of proof is a preponderance of the evidence, that means a 50.01% showing via the evidence that an amount is proper.

May 16, 2018

Submitting Law and Order SVU Episodes as Evidence?

by Robert Guest

It is not as crazy as it sounds.

Defensive theories, while totally credible, can sometimes be perceived as outrageous. In some of these cases, different types of evidence is used to prove a defensive theory. But, this evidence must meet the requirements of the Federal Rules of Evidence and be relevant to the case.

Let’s say you are facing an aggravated sexual assault of a child charge and one of your theories is that the child artificially inseminated herself and got the idea from the popular television show Law & Order SVU, sounds crazy right? Well, believe it or not, there is a case on it.

May 16, 2018

Reasonable suspicion…

by Robert Guest

For any officer to make a traffic stop he or she must have reasonable suspicion. But, what is reasonable suspicion? Well, based on the famous case, Terry v. Ohio, the officer must have the belief based on specific articulable facts that criminal activity is afoot. But still, what does reasonable suspicion mean? Just like most law driven answers, “it depends” and “it’s determined on a case by case basis.”

Does an officer have reasonable suspicion for a traffic stop when the vehicle is in the same area of reported gunshots?

In the 5^th district court of appeals case, Texas v. Montiel-Contreras, the answer is yes. Here, the defendant, charged with DWI, after being pulled over in the same complex where gunshots were heard. The officer heard gunshots coming from the defendant’s area on top of numerous 911 calls made that night describing hearing shots and seeing a black man with a gun.

April 27, 2018

Can a judge question witnesses at trial?

by Robert Guest

It is the role of the judge to remain impartial in your criminal case. This means the judge will treat both sides equal, fair, and, just. But, depending on what stage your case is at, maybe a jury trial, bench trial, or punishment hearing, the judge may have more room to ask some questions that could sound as if he or she is acting on behalf of the prosecution.

What can happen if the judge goes beyond allowed questioning of a witness?

There is a point where the judge can ask questions that affect his or her impartiality and abandon their neutral position. In the Texas 5^th District Court of Appeals case, White v. State, the court explains that there are two dangers of a judge going beyond allowed questioning: (1) it may seem that by his or her questioning, the judge is communicating his opinion of the case to the jury and could persuade the jury to think the same and (2) the judge may lose his impartiality and start to support one side than the other.

January 11, 2018

Insults and Habitual Offenders

by Robert Guest

Can a prosecutor insult a defense lawyer at trial?

In the Texas 5^th District Court of Appeals case, Gutierrez Jr. v. Texas, the issue known as “going over the shoulder of counsel” is argued. Surprisingly, prosecutors may sometimes throw an insult or two at the defense table. At times an objection can be made and the trial will proceed, but there are few instances where these insults can warrant a mistrial.

In the case mentioned above, the prosecutor told the jury “don’t believe what the defense attorney is saying, he is paid, he has been appointed in this case actually.” The defense counsel objected and moved for mistrial. The objection was sustained but the mistrial was denied.

January 2, 2018

Can I get my weapon back?!

by Robert Guest

Our firm has represented numerous clients with offenses involving weapons. The most common question we receive from the clients that we represent in these situation is “can I get my gun, knife, weapon, back?” The answer is, as always, it depends.

When you can’t get your weapon back.

Texas Code of Criminal Procedure 18.19(e) explains that if you are convicted of an offense involving the USE of a weapon, your weapon must be forfeited to the state. Then the state can either sell or destroy that weapon. But, it may be possible under the Texas code to get your weapon back.