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11.07 Writ of Habeas Corpus and Reduced Sentences

 Posted on October 02,2019 in Writs of Habeas Corpus

Nearly all of my clients ask me at some point if we can use an Article 11.07 writ to get a reduced sentence.

The short answer is no. The writ is used to collaterally attack a prison sentence. It is an “all or nothing” fight where I try to find a cognizable ground for relief that was so prejudicial to my client that the only remedy is a new trial. There’s no procedural way to ask for less time on the sentence my client has already received. Judgments are final unless reversed, full stop.

But that’s not the whole story.

11.07 writ procedures are not immune to the normal leverage and negotiation tactics that you’re used to seeing prior to trial. In fact, a good writ attorney has to be willing to devote just as much energy, if not more, to negotiating effectively with the DA office than she does investigating the case and drafting legal arguments.

In the case of 11.07 writs, however, the only way to create negotiating power is to develop facts favorable to your grounds for relief, such as concessions from trial counsel, legal errors or misstatements of the law that occurred during the trial without objection, and new evidence such as witness affidavits that contradict or call into question key trial testimony.

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Tow your rights: non-consent tows after arrest

 Posted on September 30,2019 in Pretrial

This post is the second entry in our “Know Your Legal Rights” series of blog posts related to police vehicle stops, detentions, and arrests. These posts are case studies based on real-life situations faced by defendants in the State of Texas, and are provided as general-interest information.They are not intended to be, and are not, legal advice. Every case is unique. So if you get pulled over and arrested, please seek the advice of legal counsel.

Today’s question – why do police officers love to call tow trucks, and what you can do to protect your rights when they do.

Law enforcement often use non-consent vehicle tows as a way to conduct full searches without probable cause or a warrant.

Here is a fact scenario we’ve encountered before: a client sees a police car close in behind him. After a minute of tracking the client’s car, the officer turns on his vehicle’s lights. The client is only three blocks from his home. Also, he’s in a residential neighborhood with narrow shoulder-less roads and steep bar ditches that run along both sides. So he has no obvious place to stop.

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It’s important to ask if your attorney takes court appointments

 Posted on September 19,2019 in Uncategorized

Most criminal defense attorneys operate a private practice that relies on government money to stay afloat. And that may lead to compromised representation.

So what exactly am I talking about? Let me explain.

Most of you looking for a lawyer for a criminal case think there are two kinds of defense attorneys: “appointed” attorneys that the government assigns to poor people that can’t afford a lawyer, and private attorneys who run a business representing criminal defendants. If you’re paying good money for an attorney, you’d just assume that your lawyer is a competent business person who will put real time into your case and limit the number of clients — a classic quality over quantity practice. But if you catch a case in many parts of Texas, including big suburban counties like Montgomery, your assumptions would be wrong.

In Montgomery County there is no Public Defender Office. Instead, felony court Judges literally have a “defense attorney draft” each year, selecting 11 attorneys that are assigned to their court. These attorneys are then fed tons of cases — potentially over a 100 felonies a year on average. The majority of Texas counties operate this way. Rather than pay for a public defender office, they contract with private attorneys to handle “court appointed” cases on a modest flat fee basis.

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Texas House Bill 1271: the hope for good time credits for 3g offenses

 Posted on September 16,2019 in Parole

Inmates across Texas having been asking their parole lawyers about Texas House Bill 1271. During the last legislative session a bill was introduced that would modify Texas Government Code Section 498 and greatly broaden the application of good conduct time to parole eligibility for certain inmates convicted of serious crimes.

Specifically, HB 1271 would have required TDCJ to apply good time credits to inmates convicted of 3(g) offenses –

  • Murder;
  • Capital murder;
  • Aggravated Kidnapping;
  • Human trafficking;
  • Indecency with a child;
  • Sexual assault;
  • Aggravated sexual assault;
  • Injury to child, elderly, or disabled person (first-degree offense);
  • Aggravated robbery;
  • Burglary of a habitation to commit a felony other than theft;
  • Compelling prostitution of a minor by force, threat, or fraud;
  • Criminal solicitation of a first-degree felony;

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Third Party Consent – The Curse of the Purse

 Posted on September 04,2019 in Uncategorized

This post is the first entry in our “Know Your Legal Rights” series of blog posts related to police vehicle stops, detentions, and arrests. These posts are case studies based on real-life situations faced by defendants in the State of Texas, and are provided as general-interest information.They are not intended to be, and are not, legal advice. Every case is unique. So if you get pulled over and arrested, please seek the advice of legal counsel.

Today’s Question: Can a driver consent to a police search of a passenger’s purse?

Imagine you catch a ride with a friend. A few miles into the drive, you see flashing red and blue lights in the rear view mirror. Moments later you are parked on the side of the road having a conversation with a police officer.

You start getting nervous when the officer asks both you and the driver to get out of the vehicle. You’re really nervous when you hear your friend give the officer permission to search the vehicle. You realize you’ve left your purse on the passenger seat. You also know there’s a vial of THC oil inside — and in Texas that’s a serious felony offense. What can you do? What rights can you assert? How can you protect yourself?

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“Actually Not Guilty” – For those who thought they had drugs but really didn’t

 Posted on August 11,2019 in Writs of Habeas Corpus

If you’re accused of possessing a controlled substance, you shouldn’t take a deal until the lab report comes back. That’s the advice dispensed recently in a concurring opinion in the Court of Criminal Appeals per curium case Ex parte Saucedo, WR-87,190-02.

Easy for a high court judge to say. But sometimes reality forces your hand. You can’t stomach multiple court dates. You’re accused of possessing marijuana and no one will pay for a lab report. Or you know you’re guilty and just want to get the case over with. So you take a deal.

But what if the lab report eventually comes back and proves everyone wrong (including you)? If the report shows the stuff in your possession wasn’t a controlled substance, or even if the report just shows it was a different controlled substance that what the indictment or information alleged, you can probably get your plea overturned.

The legal mechanism to do that is a writ of habeas corpus. The argument you would use is that your plea was involuntary. Why involuntary? Because if you’d known at the time that all you were possessing was a baggie of oregano or laundry detergent, then you would have rejected the plea offer.

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Should your Texas marijuana case have been dismissed?

 Posted on July 13,2019 in Writs of Habeas Corpus

As many of you know, the Texas Legislature recently passed a law legalizing hemp. You may not be aware that the new hemp law has led to the dismissal of hundreds of weed cases, and that your recent conviction may be legally suspect.

If you have been convicted of or entered a plea to a possession of marijuana case since June 10, 2019, you may have a legal basis to get your conviction or disposition overturned. You should consult a post-conviction attorney for more information.

The New Law

House Bill 1325adds provisions to the Texas Agricultural Code that authorize farmers to grow hemp and entrepreneurs to legally create pretty much any hemp-based product they want.

The law also changes the legal definition of marijuana. It amends articles 481.002(5) and (26) of the Texas Health and Safety Code to modify the list of things that are not marijuana. Specifically, any substance containing less than .3% of delta-9 tetrahydrocannabinol is no longer considered a controlled substance. So hemp is legal to possess, as is other popular products such as CBD oil, as long as they the testable percentage of THC is below .3 percent.

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Beware of schemes targeting registered sex offenders

 Posted on July 12,2019 in Uncategorized

Life is hard enough for a registered sex offender in the State of Texas. Jobs are difficult to come by. Friends and family often abandon them. There is constant judgment, ridicule, and the threat of harm by strangers.

Now, there’s a cadre of conmen out there tying to shake registered sex offenders down for money.

The scheme works like this: you get a call on your cell phone, often showing a legitimate number on the caller ID, such as a court house or county administration building. The person on the other end of the line says he’s a United States Marshall and that he’s got a warrant out for your arrest. He then claims that he has recorded conversations of you soliciting an underage person for sex. Knowing you are already registered as a sex offender, the person states he can recall the warrant and avoid release of the embarrassing material if you pay a fee. In one instance I am aware of, the con artist said he needed $850 to recall the warrant.

The whole thing is complete bs, but the target is still concerned enough by the call to sometimes pay the fee. Why? Because the last thing a sex offender wants is attention of any kind. He’d rather get ripped off than risk his parole or probation officer or the court getting phony calls about him making illegal solicitations.

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Texas Parole FI -1 (further investigation) time table update

 Posted on June 11,2019 in Uncategorized

As of June 2019, TDCJ inmate release upon granting of parole has slowed down significantly, according to conversations I have had with both clients and TDCJ parole personnel.

The slow down appears to be due primarily to TDCJ staff shortages. I’m hoping the bottleneck is not permanent, but my sources seem skeptical that the problem will be alleviated any time soon.

For now, I’m hearing the projected time tables are as follows:

If you are granted parole and are not required to take any classes, then you should receive your parole certificate within 30-60 days.

After receiving your parole certificate, it can be anywhere from two to four weeks before you receive an actual release date and named release facility.

After receiving your release date, you should then expect actual transfer and release within four to seven days.

That’s right — an FI – 1 parole release means that it could still be over three months before your loved one actually steps out into the free world.

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TDCJ good time credits explained

 Posted on November 16,2018 in Parole

Defendants contemplating a plea bargain deal for prison time need to know how much time they will actually serve before being eligible for parole. One key component to understanding your parole eligibility calculation is the “good time credits” awarded by TDCJ. When doing ball park eligibility calculations, family members sometimes rely on the general rule of thumb that if the inmate doesn’t get in trouble, he gets one day of good time credit for each “calendar” day he serves (Inmates normally refer to calendar as “flat time”).

But the actual rules are more complicated. Although you certainly don’t need to understand every nuance in the law, a general grasp of what good time you can earn (and what can be taken away) is important when planning for a post-prison future.

The first thing to know is that the statutory framework for awarding good time is hard to understand if you don’t already have knowledge of how TDCJ classification works. For anyone sentenced on or after September 1, 1987 (referred to awkwardly in the system as “70th Legislature offenders”) you earn a certain amount of days of good conduct time per 30 days calendar time served. The specific number of days you can earn depends on your classification. For example, if you’re designated as “Line CLass I” you can earn a maximum of 20 days per 30-day period. In addition, the statue authorizes TDCJ to award a “Line Class 1” inmate 15 days of work time credit. So, if you start out classified as Line Class 1, get a job and keep it, and don’t get in administrative trouble, you’ll bet cruising along earning 65 days total credit for each 30-day period – 30 days flat time, 20 days good time, and 15 days work time.

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