Posted on November 08, 2019 in Appeals

One of the first questions clients ask me about appealing their criminal conviction is what issues can be raised.

My usual answer: it depends on what your trial attorney objected to. The points of error I raise are almost always limited by what the defense attorney did or didn’t do during trial. Below is a description of why objections matter, how they are made, and how a good appellate attorney can act strategically when dealing with poorly-made objections.

Why Objections Matter

With very few exceptions, appellate attorneys operate under two primary constraints:

1. They can only raise issues that were “preserved” during trial (in other words things that the trial attorney stood up and said “objection” to in front of the court).
2. They can only raise issues that appear in the record (the actual transcript of the trial).

(See my previous blog post on motions for new trial where I discuss methods and strategies for developing a record for incidents that occurred during the trial but were not recorded by the court reporter.)

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 Posted on November 06, 2019 in Practical Advice

Like many States, Texas relies on a risk assessment analysis when deciding to release a particular inmate to parole. Although the State has broadly described the concepts and factors it relies on in creating its Risk Assessment Number, it keeps the actual methodologies used in a “Black Box” that leaves inmates, their families, and parole lawyers in the dark about how a potential parolee actually gets assessed and categorized.

Here’s a basic overview of the process:

The Texas Board of Pardons and Paroles (BPP) creates its particular risk assessment by relying on two primary groups of personal data:

1. Individual “static” factors for each inmate; and
2. Individual “dynamic” factors for each inmate.

After using these factors to get a number range, the BPP then uses a third metric it calls the “Offense Severity Class” to create a “matrix.” The matrix numbers are combined to give inmates their final single-digit “Texas Parole Guidelines Score.” That score is the key number relied upon by parole boards when deciding on whether to release an inmate on parole.

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 Posted on October 27, 2019 in Writs of Habeas Corpus

After a conviction is final, the only effective way to hold the prosecution accountable for failing to disclose exculpatory evidence is through filing an 11.07 writ application in accordance with the Texas Code of Criminal Procedure.

But public disclosure laws make the investigation of prosecutorial misconduct difficult. Specifically, the Texas public disclosure statute allows District Attorney Offices to withhold prosecutor “work product” from defense attorneys who make written request to review the State’s file.

The State relies on this “work product exception” to remove all prosecutor notes, internal memoranda, emails from law enforcement, trial preparation documents, and court notes (to name just a few commonly-withheld items) from a defense attorney’s review. The result is that defense attorneys can’t see the very documents most likely to contain “Brady” material (i.e. potentially exculpatory evidence), or documents that at least reveal misbehavior on the part of law enforcement.

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 Posted on October 19, 2019 in Post Conviction

In Texas, the statute-based motion for new trial is the most efficient way to raise two types of error immediately after a conviction or guilty plea:

1. Ineffective Assistance of Counsel and
2. Newly-Discovered Evidence Favorable to the Defense

To be clear, there is no explicit list of what can and can’t be raised in a motion for new trial. I’ve used a motion for new trial (let’s call it the MNT) to effectively raise issues related to sentence length and prosecutorial misconduct. But for the most part, we use MNT’s to preserve issues related to defense attorney mistakes and introduce new material facts for the trial and appellate courts to consider.

After a Guilty Plea

Another important point: the MNT isn’t just for contested cases — they can be used to undue guilty pleas when the client had a mistaken belief about the consequences of his plea or the lawyers had an incomplete knowledge of relevant facts.

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 Posted on October 09, 2019 in Parole

The Texas parole system can be extremely frustrating, even for those fortunate inmates who get voted for release on their first review. It’s best for those going into the TDCJ system and their families to be aware of the potential delays and pitfalls in the parole system so that they can be proactive. I’ve prepared some highlights of the bureaucratic process you’ll have to negotiate. Please understand this is a general summary. Every case has specific facts that will need to be addressed by the inmate’s parole lawyer.

1. The Texas Board of Pardons and Parole is administratively distinct from the Texas Department of Criminal Justice (and this matters).

If you go to the Parole Board (BPP) website, you’ll see a url that includes “TDCJ.” So you’d assume that the BPP is just another department inside the criminal justice system in Texas. But in fact the BPP operates separately.

This is important because the BPP’s only job is to vote for release or denial of release (a job done by the parole board members and commissioners who sit on seven different parole boards across Texas). As part of the voting process, the board also assigns conditions for release.

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 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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 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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 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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 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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 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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