Articles Posted in Criminal Defense Attorney

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Starting September 1, 2019, Texas’ new criminal laws took effect. These new laws range from new fines in DWI cases to it now being illegal to send unwanted sexually explicit photos—better known as “dick pics”. Some of the highlights from the new laws are as follows:

HB 2048 – Texas now will not impose surcharges for individuals convicted of DWI offenses. However, the new law is not any better. The Texas Transportation Code now imposes fines for the criminal offense. A first offense within 36-month period carries a $3,000 fine; a second or subsequent conviction in a 36-month period is a $4,500 fine; and a first or subsequent DWI where the blood, breath, or urine shows a concentration of 0.16 or more will pay a $6,000 fine.

HB 446 – Texas now allows clubs, brass knuckles, and batons to be carried and are no longer illegal.

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As 2019 began, the Bexar County Courthouse saw a lot of new faces in the courtrooms. In November’s election, the County saw blue wave of democratic candidates winning their elections.

In the Bexar Cojudge-gavel-1461291738X4g-300x200unty Criminal Courts, the following new county court judges are now on the bench:

County Court at Law 1: Judge Helen Petry Stowe took the bench prior to November’s election after the incumbent abruptly resigned. She was appointed by the commissioner’s court. Judge Petry Stowe went on to win the election.

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If you are not successful on either the direct appeal or the Petition for Discretionary Review, the next step would be a state writ of habeas corpus. Also, if you were not given permission for appeal, you may be able to go directly into a writ of habeas corpus.

In Texas, there are several types of post-conviction writs. What kind you will need to file will depend on what the outcome of your case was and what sentence you received.

But, a writ of habeas corpus is latin for “you have the body”. It is a legal vehicle to get back into to court and tell the State of Texas that you are illegally detaining an individual in violation of the constitution. The “great object” of the writ of habeas corpus “is the liberation of those who may be imprisoned without sufficient cause.” Ex parte Watkins, 28 U.S. 193, 202, 7 L. Ed. 650 (1830)

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camera-1-300x201In 2014, the Texas Court of Criminal Appeals upheld a challenge to the constitutionality of Texas’s law on improper photography or visual recording. Texas Penal Code § 21.15(b)(1) was found unconstitutional on its face in Ex parte Thompson, [Sept. 17, 2014], “to the extent it proscribes the taking of photographs and the recording of visual images…” The Texas Court of Criminal Appeals found this section of the penal code violated the Free Speech Clause of the First Amendment of the United States ConstitutionEx parte Thompson was a criminal case out of Bexar County, Texas.

The First Amendment, made applicable to the State’s through the Fourteenth Amendment, protects individual’s right to exercise free speech. In Thompson, the Court of Criminal Appeals reasoned that a photographer’s camera is equivalent to a painter’s paintbrush and the content should thus be regulated the same in the First Amendment context.

The Court of Criminal Appeals found that the statute prohibited content based material, thus the statute was reviewed under the strict scrutiny standard. Subsection (b)(1) was a sort of catch-all provision that violated all forms of photography and visual recording—even innocent ones.

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482515106-300x200A very strange and appalling case out of a Fort Worth, Texas district court has made national news, but this time its not for the actions of the defendant. Judge George Gallagher from Tarrant County, Texas, ordered his bailiff to electrocute Terry Lee Morris with a stun belt when he would not directly answer the judge’s questions. The federal Fifth Circuit Court of Appeals has explained that the stun belt “delivers a 50,000 volt electrical shock to the wearer when activated.” Chavez v. Cocktrell, 310 F.3d 805, 807 n.1 (5th Cir. 2002). Morris was ultimately shocked three times.

Morris, who was on trial for soliciting sexual performance from a minor, was trying to object with the court proceeding with the trial and would not answer the judge’s questions directly. Morris was complaining that he had a pending lawsuit against the judge and his defense counsel in the case.

Gallagher ordered his bailiff to shock Morris. After the first shock, this exchange followed:

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In a strange case that has more questions than answer, a Seguin, Texas family is mourning the loss of a young couple who were shot and killed by a local doctor. Law enforcement is reporting that Dr. Robert Fadal shot Anthony and Tiffany Strait as the couple helped Fadal’s mother at her home. According to San Antonio local news, the Straits had lived near Fadal for years and helped the doctor’s family with errands and odd jobs.

117311117-300x200On Sunday February 25, 2018, Tiffany, Anthony, and their three young children who range in age from 7 to 10 years old had stopped to help Fadal’s mother at her home. While outside, and for reasons currently unknown, Fadal shot Anthony Strait and then turned and shot Anthony’s wife, Tiffany. Anthony apparently died at the scene and Tiffany later died at the hospital.

According to family members, the Straits were friends with the Fadals. There is no known motive at this time and Dr. Fadal is charged with two counts of Capital Murder and is being held on a $2 million bond.

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San Antonio residmarijuana-300x225ents and visitors who are found in possession of marijuana by the Bexar County Sheriff’s Office may be eligible for a new “cite and release” program that the Bexar County District’s Office has initiated. The program is currently in its trial phase and currently only working with the Sheriff’s Department. Individuals who are eligible would be entered into a pretrial diversion program and ordered to pay a $250 fine, any restitution, perform eight hours of community service, take a course and provide a urine sample.

The stipulations of the program are not entirely clear, however, and there is no indication what would happen to an offender if they fail to complete the pretrial diversion. Other pretrial diversion programs implemented by the Bexar County District Attorney’s Office come with an agreement that if the offender does not finish the program, a guilty plea is entered on their behalf. This program also allows an officer to use his discretion in who will be arrested and taken to jail and who will be cited and released on the scene.

Possession of marijuana in Texas can have some serious consequences. Possession of 0-2 ounces is a Class B misdemeanor with a possible punishment of up to six months in jail and a fine up to $2,000.00. Possession of 2-4 ounces has a possible punishment of a year in jail and a fine up to $4,000.00. There are severe collateral consequences as well. For example, someone convicted of misdemeanor possession with have their driver’s license suspended. Some offenders who are convicted may not be able to receive federal financial aid.

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fire.jpgIn the early morning hours of December 23, 1991, a fire quickly spread through the Texas home of Cameron Todd Willingham and Stacy Kuykendall. Kuykendall had already left the house to run errands. Willingham was able to escape moments before flames completely engulfed the house. Their three daughters did not survive. The fire was ruled an arson and Willingham was tried for murder and sentenced to the death penalty in August 1992. He was executed February 17, 2004. Willingham maintained he was innocent and now his family is seeking a posthumous pardon.Surviving relatives Eugenia Willingham and Patricia Willingham Cox are petitioning Texas to exonerate Willingham based on new evidence and new scientific procedures that have developed since 2004. At the trial, the Willingham’s conviction was based largely on the testimonies of the fire investigators and Willingham’s cellmate. Jailhouse informant Johnny Webb stated that Willingham admitted that he had set the fire on purpose. Webb was subsequently released from prison early. Years later, Webb recanted his testimony and declared that Willingham was innocent. Assistant Fire Chief Fogg and Fire Marshall Vasquez testified that the fire was started by an accelerant. But, in the trial, both men acknowledged that the fire could have been caused by other means than accelerants.

Since the time of the trial, new science has emerged that refutes the testimonies of the police investigators. Studies and reports by leading arson experts have cast serious doubts on the validity of the evidence used to convict Willingham. In 2004, independent expert Gerald Hurst reviewed the evidence and determined that faulty forensic evidence was used. An expert panel of five arson scientists stated that the indicators used by the State’s experts have been proven to be scientifically invalid. In 2009 the State of Texas ordered that Willingham’s case be re-examined. In that same year, a report issued by Dr. Craig Beyler, stated that “a finding of arson could not be sustained”. Dr. Beyler discredited the testimony from a fire marshal at Willingham’s trial stating that the testimony was “hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics”. In addition, the Texas Forensic Science Commission stated in 2011 that there is a lack of science education amongst fire investigators.
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The Supreme Court of the United States is now in session. Two cases are to be heard on Wednesday, October 31. They are both from Florida and both involve the use of police dogs in the gathering of evidence in regards to illegal narcotics. The court will decide if such use violates the Fourth Amendment. That amendment states, “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.”

Currently, the Bexar County Sheriff’s Office maintains a Canine Unit consisting of five handler officers and seven dogs. Some of the dogs are patrol dogs, some are bomb detection dogs, and some are narcotics detection dogs. Canines trained for the narcotics division are used to detect the scent of marijuana, heroin, methamphetamine, and cocaine. According to the Sherriff’s Office, the dogs can locate drugs in houses, cars, and even buried underground.

In the case of Florida v Jardines, (Oral Argument Transcripts) the defendant maintains that a warrantless “sniff test” by a dog at his home with live plants inside violated his right against unreasonable searches. Was a trained narcotics canine sniffing at a front door to a private residence a search under the Fourth Amendment and therefore a violation of privacy? The defense argues that the “sniff test” should have been conducted after there was evidence of a crime.

In the case of Florida v Harris, (Oral Argument Transcripts) a valid traffic stop for driving with an expired registration tag resulted in a warrantless search of the defendant’s truck. The police officer had his dog, Aldo, sniff the outside of the truck. Aldo “alerted” at the door handle and the officer searched the vehicle’s interior. The officer admitted at the trial that the dog can pick up lingering “residual odors”. Does an “alert” from an odor that could have been lingering for an unknown amount of time result in probable cause for a subsequent search?
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Thumbnail image for handcuffs.jpg In 1994, four young women in San Antonio, Texas were accused of sexually assaulting two sisters who were aged 7 and 9 years old at the time. All four women were convicted of aggravated sexual assault of a child and indecency with a child. Three women were sentenced to 15 year in the Texas Department of Criminal Justice, while the girls’ aunt received a 37.5 year sentence. One of the girls (now 25 years old) has recanted her story and has declared that the crime never happened.

In the summer of 1994, the two sisters were staying with their aunt, Elizabeth Ramirez, in San Antonio, Texas. Two months later Ramirez was shocked to learn that her nieces had told their father that Ramirez and three other women sexually assaulted them and their friends. Ramirez, Kristie Mayhugh, Cassandra Rivera, and Anna Vasquez have stated over and over again that they are innocent. All four women refused to take plea bargains. Ramirez was tried in 1997, while Mayhugh, Rivera, and Vasquez were tried together in 1998.
The trials themselves were a witch hunt full of junk science and homophobia. In the 1980s and 1990s the United States was gripped by a rash of claims sexual abuse and satanic rituals performed on children. All across the country people were accused of horrific acts against minors. Many were convicted on nothing more than the testimony of the alleged young victims. Over the years, it has been proved that many of the accusations were false and many innocent people paid for crimes they never committed.

All four women in this case are lesbians. In the trials of Ramirez and her friends, the prosecution fed into the false stereotype of homosexuals as sexual deviants. Anti-gay views of the jury at the Ramirez trial were made clear by the foreman, a minister, who stated that homosexuality was a sin. Despite the lack of any physical evidence, the Bexar County District Attorney’s Office who prosecuted the case painted these young women as monsters to the jury.

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