Dallas Criminal Defense Lawyer Blog

June 2, 2014

My felony case was indicted then dismissed, can I get an expunction?

Our firm handles expunctions for all kinds of cases, and we spend a lot of time clearing up misconceptions about what the law is on expunctions in Texas. The number 1 misconception is that deferred adjudication probation cases can be expunged. So many lawyers were misinforming their clients about deferred expunctions, that deferred probation cases in Kaufman County now have a separate plea form that informs all Defendants that DEFERRED PROBATION CASES CAN NOT BE EXPUNGED, ONLY NON-DISCLOSED (some call this “sealed”). Quick lesson, expunction destroys all records pertaining to an arrest, non disclosure keeps those records from the public (but the Government can still view them and they still exist).

But that’s not what we are going to discuss today. Today’s misconception is that all dismissed felony cases can be expunged. Not so fast. The law in Texas places restrictions on the expunction of dismissed cases and a recent Dallas Court of Appeals case breaks down the law so let’s use that as our example.

Today’s case of the day is Bothwell vs. State, an appeal out of the 86th District Court in Kaufman County.

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 13, 2014

Texas Police Union Develops “Lawyer Up” App

by Robert Guest

CLEAT, the largest police union in Texas, has developed a new app to help law enforcement officers across Texas. Now what should be a standard feature in a police app? The traffic code? Yelp listings for breakfast nearby? A list of the most wanted criminals? The local unofficial ticket quota? The best way to “lose” video evidence?

How about the ability to quickly lawyer up after you shoot someone one? Because that’s what CLEAT put in their app.

From CLEAT-

May 2, 2014

No one will smoke K2 when weed is legal, until then we get stories like this…

by Robert Guest

A story in DMN highlights another problem with our State’s idiotic marijuana laws. By making a very safe product illegal, marijuana, we have led people to use more dangerous drugs, like K2 or synthetic weed. The end result… from DMN- 29 people treated at Dallas hospitals for possible synthetic marijuana overdoses | Dallas Morning News.

Dr. Jim d’Etienne, who supervises the emergency department at Baylor, said most patients came to the hospital by ambulance with signs of severe intoxication and psychosis.

He said multiple patients came in with the same symptoms, including extremely agitated behavior. According to d’Etienne, some had to be sedated.

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

Lyft and Uber offer market solutions to our DWI problem

by Robert Guest

Lyft and Uber are disruptive technologies (apps that let you hail a ride/cab) that threaten the entrenched taxi cartels in many cities, including Dallas. Here is how the taxi game used to work, taxi companies lobbied local government and begged to be regulated and for “consumer protection” laws. But why would an industry want to be regulated? Simple. To decrease competition. It’s not uncommon for cities to limit the number of cabs, or pass laws that create such high barriers to entry that new cab companies can’t form. Taxi companies love these kinds of laws. Economists call this “rent seeking” behavior, where companies win profits through political lobbying instead of by providing a better product. It’s also the difference between free markets and corporatism.

Taxi companies have long lobbied (ie legally bribed) their local pols to decrease competition and nobody complained much until Uber and Lyft came along. In Dallas the city tried to diligently obey their taxi masters and sent the police to arrest Uber cab drivers (Dallas is a real life version of The Wire). You know you’ve hired the right lobbyists or given the right donations when you can get the police to arrest your business competition.

I thought this was a DWI article?

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?

April 22, 2014

Dallas Police Sobriety Testing Training Problems- What you need to know

by Robert Guest

Here’s a story from WFAA about problems with the DPD field sobriety testing program. Apparently too many officers were failing, and it’s taken on a racial angle of sorts.

Dallas police sobriety testing training practices called into question | wfaa.com Dallas – Fort Worth.

Here’s what you to know.

April 18, 2014

State Jail Felony Drug Possession Cases

by Robert Guest

Have you been arrested for a State Jail felony drug possession in case in Dallas, Rockwall, or Kaufman County? Are you currently a recreational meth, coke or heroin user? Here is what you need to know.Possession of small amounts (less than one gram) of street drugs (coke, meth, heroin but not weed or some pills) is a State Jail felony in Texas.

What is a State Jail felony? Good question. Let’s start with that.

State Jail felonies are the lowest degree of felony in Texas, but it can still leave you as a convicted felon which has life altering consequences. The range of punishment for a SJF is between 6 months and 2 years in a State Jail unit. But here’s the good news, the State Jail system was originally designed to make drug addicts sit in jail until they were cured, so there is no parole from State Jail. But the State Jails filled up too fast and cost the State too much money, so if you have no prior State Jail drug cases then you are going to be looking at probation.