Dallas Criminal Defense Lawyer Blog

April 3, 2014

What’s the law on kidnapping in Texas?

The Dallas Court of Appeals recently upheld a Rockwall County kidnapping conviction. Let’s look at the laws regarding kidnapping in Texas, and discuss the facts that led to the courts decision. Here’s the case- Wilson vs. State of Texas- I usually go through all the facts of the case, but this one has a really weird fact pattern, and I think that’s why the defendant got probation. It just not what you think of when you think of a kidnapping. So I’m going to skip it so we can cover some other areas.

First, what’s the law on kidnapping in Texas?

Good questions, let’s go to the opinion-

March 31, 2014

1983 Lawsuit filed against City of Kemp/Police Chief and Kaufman Sheriff Deputy

by Robert Guest

The City of Kemp, Texas and it’s police chief are being sued in the Eastern District of Texas for an alleged false arrest and police brutality by Robert McCollom (Plaintiff). Kemp disbanded it’s police force in 2012 and the Kaufman Sheriff’s office was going to patrol Kemp. I am not sure when Kemp PD undisbanded (rebanded?) but apparently they are out making arrests again. The City of Kemp and the Chief of Kemp PD Jimmy Council (who was rescued last year after falling down a well in Lassie-eqsue fashion) are being sued along with a Kaufman Sheriff Deputy in a 1983 action. Let’s look at the case and learn about federal civil rights lawsuits shall we?

What’s a 1983 case?

42 USC Section 1983 allows lawsuits against state actors for constitutional violations. That is, if a state or local government official violates your constitutional rights under the “color of law” (as part of their government employment) you can sue them in federal court.

January 19, 2014

Does the Texas Transportation code (implied consent) trump the 4th amendment?

by Robert Guest

If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.

The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.

So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.

January 7, 2014

DWI Blood Draws and Your Drivers License

by Robert Guest

When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look.

When Texas set up the ALR hearing system to suspend drivers licenses after DWI arrests they had breath tests in mind. That is, the State would know the bac result from the breath test at the time the defendant was arrested, so if the defendant failed, then the cops would notify DPS to suspend their license.

The law in Texas states that after being arrested you have 15 days to call DPS and ask for an ALR hearing to challenge your license suspension. If you don’t request a hearing, then your license will be suspended after 40 days (from the date of arrest). If you do request a hearing within 15 days your license is good until the hearing and then only if the judge rules against you (which usually happens, the ALR game is rigged so that DPS usually wins, because tuff on crime).

December 31, 2013

Houston Court of Appeals affirms State’s right to rigged DWI trials

by Robert Guest

Being a DWI defense lawyer, or defendant, is tough in Texas. One reason is that our appellate courts will go to almost any length to uphold a DWI conviction. We have pro-conviction judicial activism to an amazing degree in Texas. Don’t believe me. Let’s go to the case of the day,

Kristen Aleia Simpson v. The State of Texas

Kristen was convicted of DWI after a jury trial. But it was a rigged trial. Rigged in the fact that the judge allowed jurors who expressed a bias towards the State to remain in the jury pool. Did you think that jurors are not supposed to be biased? That they are supposed to be fair and neutral? That’s only fair right?

December 28, 2013

So you’ve been shot by the Dallas Police and you want to sue?

by Robert Guest

19-year-old shot by Dallas police officer sues in federal court for ‘a very large sum of money’ | Dallas Morning News.

DMN reports on a very quickly filed lawsuit following yet another DPD shooting. I wonder if the new 72 hour rule for DPD officers will play a role in this case?

I get contacted fairly often regarding allegations of police misconduct and people want to know if they can sue the cops if they are abused or treated unfairly. Let’s go over the petition in this case, titled Kelvion Walker vs. Amy Wilburn to understand the basics of a federal lawsuit against law enforcement.

December 11, 2013

Rules of Evidence, Harmless Error, and Facebook Posts

by Robert Guest

If you read criminal appeals you know that our appellate courts desperately want to help the State by upholding as many convictions as possible on appeal. They accomplish this in a few ways, one is by letting the State break rules and laws as often as possible without consequences. How does this look in practice? Our appellate courts embrace the idea of “harmless error”; that the State is making conviction omelettes it’s ok to break a few eggs along the way.

The Rules of Evidence are a great example. These are the rules that govern what kind of evidence can be used at trial. If the Defense objects at trial and the judge erroneously lets the evidence in anyway the idea is that you can file an appeal and have another court fix this mistake by granting a new fair trial. But this is Texas, and we have a conviction machine to protect, so on appeal the courts look for anyway to justify the fact that while the State may have broken the rules, that’s ok because we got the “right” result, which is that the Government got their conviction. The “finality of convictions” is a key phrase to look for in appellate opinions, it always accompanies injustice.

Let’s go to our case of the day.

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

by Robert Guest

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.