Criminal Defense

The highest appellate court for criminal matters held that a warrantless search through a cell phone violated the 4th Amendment on the U.S. Constitution. The cell phone was in the property lockup of the Walker County Jail when an officer with the Huntsville Police Department accessed the contents of the phone without a warrant or permission from the owner. The phone’s owner was incarcerated for a matter totally unrelated to the officer’s investigation when prompted him to look through the phone’s contents. The Court, because it reasoned that “a cell phone is not like a pair of pants or a shoe,” held that the search was unconstitutional and upheld the trial court’s suppression of the evidence gathered in that search. The full text of the opinion is here: Texas v. Granville.

By now most are familiar with no-refusal weekends. Taking their cue from case law, law enforcement agencies and prosecutor’s offices have put in place procedures on certain high-risk weekends to ensure that as much evidence as possible is gathered against anyone suspected of DWI. The procedure is now common, but still usually limited to those weekends when the resources are in place and on-call to get the required blood warrant from a magistrate in order to draw blood from an arrestee who refuses to give a breath or blood sample. Now Harris County is expanding their program beyond special weekends, in fact, the program is expanded beyond weekends altogether. It is notable that the Houston Police Officer’s Union has mixed thoughts about the change in policy. While it, of course, supports the idea, it has misgivings as to the extent this policy shift will change how much time a given officer spends dealing solely with DWI. The police union is essentially saying that investigation into other kinds of crime is likely to suffer.

Johnny Louis Torres Jr. v. State of Texas – PDF of Opinion – Modified and Affirmed The court’s opinion here deals with an appeal of a conviction for possession of a less than one ounce of cocaine, a state jail felony which was enhanced to a second degree felony by prior state jail convictions. Mr. Torres pled guilty to the charge, and he was sentenced to twelve years confinement in TDC. Torres appealed his conviction on two grounds.Firstly that that the trial court did not order a substance abuse evaluation as required by statute. Secondly that he was given a sentence that was impermissibly long because the trial court did not make express oral or written findings on the enhancement paragraphs. The appellate court overruled Torres’s first point of error because Torres did not raise that particular issue at trial. Citing Alberto v. State, the court found that while a substance abuse evaluation is mandatory, a defendant must assert that right at trial or the claim is waived, and the claim may not be addressed on appeal. 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.). Torres’s second issue, that his sentence was unlawfully enhanced, was also overruled by the […]

Harlon Ray Buckner, II v. The State of Texas – Link to Opinion – Affirmed DNA testing of old evidence has become almost routine, however, procedural issues can easily stand in the way of allowing a convicted person getting a new trial. Buckner v. State shows how careful an attorney must be to preserve rights of appeal when an inmate requests DNA testing after conviction. Harlon Ray Buckner was convicted by a jury of aggravated kidnapping and sexual assault and sentenced to 20 years in TDC in 1997. In 2008, Buckner made a motion for post-conviction DNA testing under Article 64.03. The state indicated that the Harris County Clerks Office was in possession of a few pieces of evidence that could be DNA tested including a rape kit and some microscope slides containing hairs. The Trial Court ordered the testing done. Based upon the results of the testing the Trial Court concluded that the DNA testing was not favorable to Buckner. Buckner did not appeal this 2008 motion. In 2009 the Trial Court appointed Tom Martin to represent Buckner in another motion for post-conviction DNA testing. Buckner claimed that a motion was filed in his brief, but the record has […]

The State of Texas has a proud history of racing; such greats as Shelby and Bondurant have graced this state’s register of residents. However, our racing prowess will not stop the Texas Commission on Environmental Quality’s (TCEQ) from interpreting their automotive emission rules quite strictly. So strictly in fact, that your custom, mandrel bent, stainless steel, 3″ diameter, chrome tipped, all out, dual cat, dual exhaust system (or any aftermarket system…really) may very well be violating the rules and regulations of Texas. So, when can you have a dual exhaust system you ask? Well, you can have a dual exhaust on your car when “the vehicle’s manufacturer certified an identical engine-chassis configuration for that model year of vehicle or newer that includes such an exhaust configuration.” Wait, what? Here’s an example. Let’s say you purchased a 2003 truck with a V6, and for that year the manufacturer only made that truck with a single exhaust. If, over the coming model years for that generation truck, the manufacturer never put a dual exhaust on that vehicle, you can’t either. However, if the manufacturer put a dual exhaust on the 2004 truck with a V6, then you are free to bifurcate the […]

The 9th Court of Appeals released 1 opinion today, a memorandum opinion concerning a Montgomery County criminal case: CHAD ERIC MINER, v. THE STATE OF TEXAS – Affirmed The 9th Court of Criminal Appeals affirmed the Montgomery County Court at Law #5’s denial of the defendant’s motion to suppress evidence prior to trial for DWI. At the suppression hearing the arresting officer testified that appellant did not maintain a single lane of driving and swerved/drifted onto the shoulder without indicating and without apparent purpose. The trooper testified that appellant was not a danger to any other persons on the seven lane road. The Court found, on the only issue, that the Trooper did have reasonable suspicion to stop the vehicle since the state met its burden of proof that a violation had or was about to occur under 545.058 of the Transportation Code. Since the Trooper had reasonable suspicion to stop the vehicle, the evidence from the stop cannot be suppressed. The Appellant argued that the section of the Transportation Code he allegedly violated, crossing a “fog line” onto an improved median, has several exceptions if a necessity arises (an example exception: “(5) to allow another vehicle traveling faster to […]

In case you missed it, Casey Pachall, the starting quarterback for the TCU Horned Frogs, was arrested this week. As the article notes, and as any college football fan already knows, Pachall was suspended indefinitely from the team. Even a cursory scan of internet message boards will show that this is considered a “good thing,” impressing readers of such snap reactions that the conventional wisdom remains that an allegation of DWI should result in significant consequences. The purpose of this post isn’t to argue with the conventional wisdom, rather it is to disaffect the reader of the notion that the legal requirement of considering defendants innocent before conviction does not, in reality, have great effect. The truth of the matter is those accused of DWI can potentially be punished long before conviction, even by the court. The example of TCU’s QB is not isolated, as you no doubt know of one or more people accused of DWI who lose their jobs outright, are suspended, or simply lose privileges at their place of employment. However, even the court system can mete out punishment before a determination of guilt is made. An accused person can have his or her driver’s license suspended […]

Up until now, of all the crimes you hypothesized you could commit and get arrested for, we are certain one has never streamed into your mind. That thought is whether or not you could get arrested for Boating While Intoxicated as you paddle a canoe. Under the strictest interpretation of Texas Penal Code, Chapter 49, it looks like you can get arrested. Let’s assume you’ve had a very nice picnic downstream, and it’s time to head upriver. Somehow, during this picnic you became intoxicated, which means  you have lost the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or by having an alcohol concentration of 0.08 or more. No problem, you think, this canoe doesn’t have a motor, and you’re going to take a nice easy trip upriver, and nap it off under the old oak tree by the launch site. You have a life preserver on even. This seems like a perfectly reasonable thing to do. Well, here is some bad news, a canoe which is being paddled is […]

Attorney’s Fees. You paid your lawyer and now you want your ex-spouse to repay you. There are times when a court can and may give you such an award. On top of that, the court may even deem the attorney’s fees as necessary expenses for a child or children involved in the suit. The result of such a finding is that the award of attorney’s fees may be awarded as additional child support, and enforcement of that award much easier than a mere judgment. However, in December the Texas Supreme Court ruled that in a non-enforcement modification action, no “necessaries” finding or additional child support order of attorney’s fees may be made. What does that mean for your case? Well, if you are seeking enforcement of the court’s prior order, this ruling doesn’t apply. Your ex-spouse preventing you from seeing your children, or violating an injunction such as allowing a specific person to babysit? Attorney’s fees may still be awarded. These kinds of scenarios are exactly what the term “necessary expended for the child’s benefit” is talking about. However, is the visitation schedule no longer working because of a change in your work schedule? Is child support no longer anywhere […]