Dallas Criminal Defense Lawyer Blog

Since the Court of Criminal Appeals granted a stay of execution for Attorney Client privilege I haven't blogged about the subject. I think it's time to start the conversation again.

One thing that the ACP protects is your attorney's work product, his files, his notes etc. Without attorney client privilege the State could issue a warrant and seize your attorney's files. Think that wouldn't happen? You must not practice law in Collin County.

TCDLA sent this email today detailing the police raid on defense lawyer Keith Gore's office. Keith was under suspicion from local authorities for allegedly representing a criminal defendant in Collin County.

The police thought Keith may have actual physical evidence in his possession. There was a subpoena issued for the evidence and the police raided Keith's office. No physical evidence was found, so the police took Mr. Gore's files instead. This is the sort of skullduggery that attorney client privilege and work product doctrine are supposed to protect.

From TCDLA-

Attached is the Amicus brief filed August 5 in Collin County on behalf of TCDLA, in support of Keith Gore. To see the brief please click on this link: http://www.tcdla.com/docs/AMICUS%20BRIEF%20FIILED%208-5-08.pdf

As you may know, the issue here concerns the search of a lawyer’s office, which resulted in the seizure of a box of documents. On February 29, 2008, TCDLA Member Keith Gore from McKinney had his office searched pursuant to a search warrant. Before the warrant was signed, the Collin County Grand Jury had issued a grand jury subpoena for certain evidence believed to be in Gore’s possession regarding his defense of a person accused of capital murder. Gore properly filed a motion to quash the subpoena and set a hearing. Before the hearing could be held, the State obtained the search warrant.

This is a matter of highest importance to TCDLA. Keith Gore is a highly respected lawyer and member. Gore was defending his client and the State’s ability to obtain evidence in his possession through proper legal means. The State denied Gore the opportunity to be heard at the hearing on the motion by obtaining the search warrant.

A hearing was held today on the defendant’s motion to recuse the judge, who had heard the motion on stipulated evidence. The court was concerned that the judge issuing the search warrant knew about the hearing on the motion to quash before he signed the warrant and that the judge issuing the search warrant became a chain of custody witness because he opened a sealed box. The opening of the sealed box is disputed, the judge saying he didn’t and the police saying he did.

Thanks to everyone who showed up for the hearing. We should have a ruling on or after August 15, 2008.

Continue reading "Attorney Client Privilege In Collin County" »

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I filed an open records request for documents pertaining to the Cherry Pit raid. I received the affidavit used to search the premises and the investigation report.

Cherry Pit Search Warrant Affidavit and Return

Cherry Pit Investigation Report

I don't have time to break these down yet. Let me know your thoughts.

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Posted In: Dallas Criminal Justice , Open Records , Police

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One reason I offer free consultations is to educate the public about the criminal justice system. If you hire me or not I want you to know what to expect and what your options are.

Unfortunately, education also includes breaking bad news to potential clients. I have had a few inquiries about appeals only to inform the defendant and/or the defendant's family that there will be no appeal because deadlines have been missed.

To avoid this in the future here is a quick guide to state criminal appeal deadlines.

You Must File A Noitce Of Appeal Within 30 Days Of Sentencing
Ok. To keep this simple, hire an appellate attorney as soon as possible. If you are remotely considering appealing your case quit reading this and find a criminal defense lawyer.
If you really want to know the law then keep reading.

What is the law?
From the Texas Rules of Appellate Procedure (yes the initials are TRAP)-

26.2 Criminal Cases. The notice of appeal must be filed: (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

30 days from sentencing
A plea of guilty, or a guilty verdict from a judge or jury alone does not start the deadline for appeal. The important date is when sentence is imposed. Many cases, including most plea bargains and misdemeanor cases, will include sentencing on the same day as the verdict. Some cases will include a separate sentencing hearing, or sentencing will be put off until a future date to let the jury have a break.

Motion For New Trial
The deadline for appeals may be extended if a motion for new trial is timely filed. What is a Motion for New Trial? Again, quit reading this and find an appellate attorney.

From TRAP-
RULE 21. NEW TRIALS IN CRIMINAL CASES

21.1 Definition.
(a) New trial means the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt.
21.2 When Motion for New Trial Required. A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record....
21.4 Time to File and Amend Motion.
(a) To file. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.
(b) To amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

Unfortunately, some defendants are sentenced and begin probation or incarceration without knowledge of this deadline. Your trial attorney should make you aware that you have 30 days to file an appeal. If she doesn't and you miss this deadline you can still file a Writ of Habeas Corpus (for ineffective assistance, inter alia). However, Writs are much more limited than appeals.

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Posted In: Texas Laws

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Recently, the Department of Homeland Security gave it self the power to seize the laptops of airport travelers. DHS unilaterally decided that it may steal your computer without cause and keep it forever. In order to protect your freedom DHS has repealed the 4th Amendment- From the founding fathers-

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Stealing laptops without cause would seem to qualify as an unreasonable seizure.Unfortunately, the 9th Circuit Court of Appeals recently upheld this despicable practice. I wouldn't hold my breath for a supreme court reversal.

How does DHS justify this unconstitutional privacy violation? First, with denial. Then they cite the War on Drugs as precedent for suspicionless border searches. Finally, the DHS claims that stealing laptops may turn up kiddie porn. You aren't for kiddie porn are you?

From the Washington Post

Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not infringe on Americans' privacy." In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.

Homeland Security Secretary Michael Chertoff wrote in an opinion piece published last month in USA Today that "the most dangerous contraband is often contained in laptop computers or other electronic devices." Searches have uncovered "violent jihadist materials" as well as images of child pornography, he wrote.

Notice what DHS didn't say- that they could do they same work with warrants (if they weren't so lazy and incompetent), that this has not prevented any terrorism, and that are no safeguards in place to protect the innocent. When you replace the safeguards of the 4th Amendment with security theater and zealous bureaucrats, you are defending liberty by destroying it.

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Rep. Barney Frank proposed ending federal criminal penalties for possession of small amounts of marijuana. The Personal Use Act may not have a chance to pass this time, however the tides are turning against our failed drug war.

For proof the public is catching on read the comments to the CNN story. Despite years of hystrionics (smoking pot is just like Russian Roullette!) and tax payer funded garbage propaganda Americans are rejecting prohibition louder than ever before. There is simply no logical intelligent support for arresting Americans who use cannabis.

For some perspective closer to home check out these comments on legalization
- the Dallas Morning News
- the Ellis County Press.

Which sound represents your views? Do you still believe the federal government should arrest marijuana consumers? How about medical marijuana providers?

Reason.TV- The Charlie Lynch Tragedy
For supporters of federal prosecution watch this video by Drew Carey and Reason.TV.

Mr. Lynch runs a medical marijuana dispensary in California. Mr. Lynch has broken no state laws. He provides doctor prescribed medical marijuana. Still your federal government has decided to send Mr. Lynch to prison. The trial is on going and the judge is not allowing important jury nullification evidence, denying Mr. Lynch a fair trial.

One of the arguments used by the DEA et al, is that marijuana isn't medicine.

Maybe they should look at this US patent for medical marijuana. The holder of patent 663030507? Your federal government.

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Posted In: Marijuana

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Few things on the highway are as ubiquitous as a cop hiding from view, armed with a radar gun. As long as local governments have needed tax revenue, radar guns have been used to fine speeders.

How exactly does a radar gun work? Can this information help beat your ticket?
See for yourself. Here is a copy of the Radar Operations Manual from the Texas Department of Public Safety. Happy reading.

Table of Contents/ Chapter 1- Introduction

Chapter 2 Basic Principles of Radar Speed Measurement

Chapter 3 Legal Considerations

Chapter 4 Additional Considerations

Annexes (Graphs etc)

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Posted In: Open Records , Police , Texas Laws

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Texas Alcoholic Beverage Commission officers spend a lot of time harassing college students, busting up high school key parties, and arresting bar employees. However, TABC agents know how to have a good time. In fact, TABC agent routinely work undercover at Dallas strip clubs buying lap dances and beer with your tax dollars!

I filed an open records request last year to learn more about this undercover operation. To my surprise these strip clubs stings are not a TABC employee morale boosting program- this is considered law enforcement.

Nothing makes blogging material like a follow up story. So, I filed a follow up open records request to check in on the TABC strib club subsidy program.

I didn't receive as much information as my first request. For example, last time I received offense reports where the officers detailed the dangerous crimes they were investigated (improper lap dancing!). I may file a follow up open records request. Until then, here is what I learned.

A day with TABC and your tax dollars- 11/8/2007
Whevern TABC wants to use taxpayer money on lapdances, they are required to fill out a "purchase of evidence" report. I received some POE reports from November 8, 2007.

On 11/8/2007 undercover TABC agentsmanaged to infiltrate several Dallas area strip clubs. Armed with over $400 in taxpayer funds these officers bravely purchased 21 beers, and 9 lap dances. TABC is working hard to protect Dallasites from the lap dance menace; is this a good use of tax payer resources?

If one listed the dangers facing Dallasites today, where exactly would lap dances rank? Probably well below being wrongfully convicted and home invasion burglaries.

Dallas has one of the highest crime rates in the country. Real crime should take priority over inventing crime at strip clubs.

Here are the reports TABC sent.

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Posted In: Dallas Criminal Justice

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I get a few readers who are searching for "Dallas Court of Appeals". As a public service here is some basic information on the 5th District Court of Appeals.

Where is the website for the 5th District Court of Appeals in Dallas?
Here is the website. This site was recognized as one of the best in 2000. Unfortunately, it really hasn't changed since. The site design has a Windows 95 flair. Function over form.

What Does A Texas Appellate Court Do?
When a trial court makes a decision, that decision can be reviewed by an appellate court. For example, a defense lawyer may object that certain evidence is hearsay and should be excluded. If the judge rule overrules the objection and the defendant is found guilty, the defendant can appeal that decisions. The appellate court will then decide if the trial court's decision was in error. (Trial court error's are usually not enough to overturn a conviction. Texas appellate courts often rules that mistakes by a trial judge are "harmless.")

What areas does the 5th District appellate court serve?
Appeals from Collin, Dallas, Kaufman, Rockwall and Grayson county are all heard by the 5th District Court of Appeals.

Here is a map showing the jurisdiction for all Texas appellate courts.

I thought the 5th Circuit Court of Appeals was in New Orleans?
It is. However, that is the federal court of appeals. Dallas is the seat of the 5th District Court of Appeals.

Isn't there more information on criminal appeals at RobertGuest.com?
Great question. For information on appealing a criminal case, here is my appellate page from robertguest.com.

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Posted In: Dallas Criminal Justice

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Is an impartial judiciary important for criminal defendants? Even if the defendant is charged with DWI?

DWI enforcement has already destroyed many Constitutional Protections for DWI suspects. The 4th, 5th, and 6th amendments were long ago sacrificed to ensure efficient DWI convictions. Unfortunately MADDness and DWI hysteria are now threatening to destroy the impartial judiciary.

National Center for State Courts
The excellent DUIblog by Lawrenece Taylor recently exposed the judicial DWI training offered by the National Center for State Courts. NCSC teaches judges to be advocates for DWI convictions, going so far as to suggest judges meet with police and prosecutors to help them convict. If that was any case besides DWI, I would be shocked. Here is the NCSC, in their own words.

"What is the role of the courts in DUI Cases?"

In DWI cases, courts can have a much broader role than in many other types of cases. Through its interaction with law enforcement, prosecutors, defense attorneys, defendants, the public, and the press, the court establishes a tone toward DWI cases in the community. This is evident when the court addresses a defendant at sentencing to stress the severity of a DWI offense, invites school groups to attend DWI trials or dockets, or explains to law enforcement procedural shortcomings following unsuccessfully prosecuted cases. Judges, through their roles on the bench and in their personal lives, are leaders in the community and the attitudes they express are critical to shape public attitude toward DWI prevention and enforcement.

Training Texas Judges To Prosecute DWI
Naturally I wondered if similar DWI training was offered to Texas Judges. A quick Google search led me to the Texas Center for the Judiciary (TCJ). What is the TCJ? From their website-

The Texas Center for the Judiciary is the primary provider of specialized judicial education and training opportunities for Texas appellate, district, and county court at law judges.

What DWI training does the primary provider of Texas judicial education offer? Here is the DWI course list from the TCJ website-

Development and Field Test of Psychophysical Tests for DWI Arrest Source- Government |
Validation of the Standardized field Sobriety Test Battery at BACs Below 0.10 Percent Source- Government
A Florida Validation Study of the Standardized Field Sobriety Test (SFST) Battery Source- Government
The ABCs of DREs - Georgia Traffic Prosecutor Source- Prosecution
Horizontal Gaze Nystagmus: The Science and the Law Source- Prosecution
Psychophysical Tests for DWI Arrest Source- Government
The Detection of DWI Motorcyclists Source- Government

Notice anything? All these courses are authored by Prosecutors, or the Government! This is the same training we give the police and prosecutors. Judges with this type of DWI training would not be aware of, inter alia, the statistical fraud behind field sobriety testing.

Fortunately, Texas Judges are free to attend any training they choose. I have seen many judges at TCDLA seminars. The question then becomes- how many judges are trained only to prosecute DWI?

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Posted In: DWI

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The debate on the CP raid is evolving. My original post generated some good discussion on liberties, lifestyles, and law enforcement. Thanks to all for reading and posting.

One justification for this raid that hasn't been discussed is the nanny state view. The idea that adults need police protection from themselves. A great summary of this view if offered by Duncanville Police Detective Dan Hunt. Here is a quote from DMN-

In a city news release issued Wednesday, police Detective Dan Hunt said the Cherry Pit's owners are endangering and exploiting patrons.

"Individuals that elect to participate in the swingers' lifestyle behind closed doors should not be charged to do so, and they should not be exposed to disease, fire hazards, or any other dangerous hazardous environment. They [the owners] are taking advantage of swingers while claiming to be champions for their cause."

We sent the police into a private house at night to ensure a proper swinging environment? Really? I am curious as to Detective Hunt's expertise on how to conduct a swinger party. Is there police training on swinger etiquette?

I do appreciate arguments against running a business in a residential area. I wouldn't want any business next door to my house, whether it be a sexually oriented business or a Starbucks.

However, I still believe the proper venue for code enforcement, nuisance claims etc is civil court. A simple injunction or restraining order could address the city's concerns and give both parties an equal opportunity to litigate their claims.

Sending the police into a private residence at night is simply too dangerous a measure to protect adults from themselves.

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Posted In: Dallas Criminal Justice

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I had a pre trial hearing today regarding the broken Intoxilyzer machine in Kaufman. In Texas, technical supervisors are employed by DPS to maintain and verify these machines.

I was looking to suppress the evidence from a machine that had proven to be faulty and was taken out of service. We had a spirited hearing for 90 minutes, and my suppression motion was denied.

However, there was some interesting testimony on the I-5000. As a public service, here is some information on the Intoxilyzer 5000 (I-5000) and Technical Supervisors (TS).

1. Technical Supervisors have no repair on maintenance manual for the Intoxilyzer. If an I-5000 breaks a TS can only replace parts. If that doesn't work, they send it to Austin.

2. Technical supervisors only know an Intoxilyzer is broken if and when the Intoxilyzer tells the TS that it is broken.

To see if an I-5000 is working correctly a TS will ask the I-5000 to perform a self check. If the self check comes back ok, the machine is verified as accurate.

Wait a minute? If a machine is broken or malfunctioning, it may not run a self check correctly?

That's right. If this was a case other than DWI that would be a problem. However, we let all kinds of phony evidence in on DWI cases.

If an I-5000 does not self report that it is broken, no one knows. Not the TS, the prosecutor, defendant, defense lawyer, or jurors. TSs do not have any way to independently verify that an I-5000 is working properly.

3. TSs can not tell if the self check software is malfunctioning. TSs do not know how the software works.

Actually, it's worse than that. TSs don't know how ANY of the I-5000 software works. What formula does the software use to calculate BAC from photons? Ask the company.

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Posted In: DWI , Kaufman County

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The Kaufman courthouse has been evacuated. Allegedly, someone called in a bomb threat.

Texas law makes it illegal to call in a fake bomb threat. Here is the law. The question is... is today's bomb threat fake? I really hope so. And, is a courthouse a "public service". If so, this is a State Jail Felony. If not, this is a misdemeanor.

§ 42.06. FALSE ALARM OR REPORT.
(a) A person commits an offense if he knowingly initiates, communicates or circulates a
report of a present, past, or future bombing, fire, offense, or
other emergency that he knows is false or baseless and that would
ordinarily:
(1) cause action by an official or volunteer agency organized to deal with emergencies;
(2) place a person in fear of imminent serious bodily injury; or
(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.
(b) An offense under this section is a Class A misdemeanor unless the false report is of an emergency involving a public primary or secondary school, public communications, public
transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony

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Posted In: Kaufman County

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