Appeals

May 16, 2018

Reasonable suspicion…

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.

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.

October 31, 2017

Expunctions, they can be reversed.

by Robert Guest

What is an expunction?

An expunction is available to a someone arrested for a crime, but never convicted, or to a person given deferred on a Class C misdemeanor. Expunctions are for arrests only, they serve as a way to have the arrest taken off of your record.

The process.

May 8, 2017

Texas Penal Code Article 22.07: Terroristic Threats, what are they?

by Robert Guest

For some of us, when we hear of a person making terroristic threats we think of a person causing trouble for political or religious reasons. But, according to the Texas Penal Code, just the mere threat of violence to a person or a person’s property is enough and the purpose behind the threat is not considered.

You can be charged with a terroristic threat charge if you threaten violence to a person or their property and (1) cause any type of reaction from an officer, volunteer, or any other agency that deals with emergencies; (2) put ANY person in fear of immediate injury to their self (3) prevent the use or interrupt the use of a building, public place, employment, aircraft, automobile, or other public place (4) cause interruption with any public communication, transportation, public water, gas, or power supply or any other public service (5) put the public or a number of people in fear of bodily harm or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

Nowhere in the code is it defined that these threats must be made with any sort of political or religious views as the basis of the threat. So basically under section (2) of 22.07 the State could snag anyone with this charge if that person threatens serious, immediate violence to a person who believes that an injury is immediate. Which is similar to Penal Code 22.01 Assault, where a person threatens another with immediate injury to their body.

March 27, 2012

Dallas Appeals Court Reverses Retaliation Conviction

by Robert Guest

Today’s Dallas Court of Appeals case of the day is- Lowell Merritt vs. The State of Texas!

What happened? From the opinion.

The events leading up to appellant’s indictment on a felony retaliation charge began in July 2007 when appellant’s neighbor reported that appellant “cussed” his wife. After reviewing the report, a Collin County sheriff’s deputy filed a disorderly conduct complaint against appellant in the Precinct 2 Justice of the Peace Court of Terry Douglas.