Monthly archive

April 2013 - Page 2

Said & Done



Congratulations to Lockhart defense attorney John P. Bennett, who filed a Motion to Suppress the intoxilyzer test in a DWI case, and the motion was granted by a visiting judge in Hays County. The Court held that the State failed to prove “by clear and convincing evidence that the (defendant) voluntarily consented to the taking of the breath test.” The arresting officer gave conflicting accounts in the ALR hearing and the pretrial hearing about whether he had promised the defendant that if he blew under 0.08, he would let him go. The twist? The defendant was a seasoned criminal defense attorney. So was his lawyer. The DWI case was dismissed soon thereafter. Way to go, John.

Perry Minton and Sam Bassett tried State v. Gabrielle Nestande for 2 weeks in February. Ms. Nestande was charged with Intoxication Manslaughter, Manslaughter, and Failure to Stop and Render Aid in a case highly publicized in Travis County. The jury deliberated over 3 days on guilt/innocence and found her not guilty of all indicted charges and guilty of the lesser included offense of Criminally Negligent Homicide. After 4 more hours of deliberations on punishment, the jury sentenced her to a term of probation. As Sam notes, “This case was perhaps the most stressful of my 25 years, and I credit Perry’s hard work along with the help of great lawyers such as Terry Kirk, Reagan Wynn, and Bill Allison, who all pitched in at different points to steer us in the right direction. Jury consultant Robert Swafford also did excellent work for me in helping me through voir dire. What was particularly interesting is that District Attorney’s office refused to make any plea offer whatsoever in the case, in spite of our requests for them to do so.” This was some excellent teamwork on a very contentious case.

Thad Davidson heard good news recently after a long battle when the Sixth Court of Appeals in Texarkana reversed the judgment and prison sentence in Graylin Bo Rusk v. State of Texas. Thad was Mr. Rusk’s appointed attorney during a contested revocation of probation hearing and on appeal. The trial court revoked Mr. Rusk’s probation because he didn’t pay his probation fees. What the trial court failed to do, however, was ascertain whether Mr. Rusk could have paid his fees—though the State failed to put on any evidence that Mr. Rusk had money.
                At a revocation hearing nearly a year ago Thad was caught off guard when it became “a knife fight in a phone booth,” and Mr. Rusk was thrown into prison. On appeal the COA said that Thad did preserve error, that the trial court had abused its discretion, and that the State had failed to prove its case at the revocation hearing. More importantly, the COA said it is unconstitutional to lock up somebody because they’re poor, the point counsel had been trying to make.
                But there’s more. Thad then became Mr. Rusk’s court-appointed attorney in a new felony case, where he was accused of beating the “other” boyfriend of (Mr. Rusk’s alleged) girlfriend with a baseball bat—agg. assault with a deadly weapon, a 2nd-degree felony punishable by up to 20 years. In a negotiated deal, D pled guilty to the new felony and received 4 years back in prison. The original case? Mr. Rusk will be put back on probation in his original case—even while incarcerated on his second—and will serve out the probation concurrently while he’s serving time on the new case.
                All in a day’s (or a year’s) work . . . As Thad notes, “The good news is that a Texas Court of Appeals openly recognizes in the Rusk opinion (which is published for all other TX courts to see and rely on) that the U.S. Constitution is alive and well, that it is still the law of the land, and that it applies equally to good people and other-than-good people alike.”

Todd Hatter recently heard the two-word verdict in an emotional jury trial in Amarillo. D was charged with Agg Assault with a deadly weapon by threat, and offered initially six years in prison, then four years.
                The state’s version: A husband and wife were confronted by homeless scrungy person asking for a ride. When refused, D gets angry, cusses them, eventually pulls a box knife from his pocket, and threatens to kill husband. Police arrive and taze D to cuff him and recover box knives—all on video.
                Todd, in in first person, relates D’s case: A marine veteran just wanting a ride to Diana’s Burritos, still having tools from work with him, is ordered away and challenged by a man (husband) threatening to use a gun on him. Marine replies, “Big deal, I have a knife,” going to the other end of the parking lot, where he waits to tell police his version. Cops show up and point guns in D’s face, one screaming at him to “show me your hands.” D asks, “What have I done wrong,” and cop replies, “It doesn’t matter!
                As Todd notes, “I showed the jury two scenes, the client with husband, and client with cops. I pose the question, Can you blame my client for being confused, angry, non-compliant? I tell them police just told a man who served his country that his side of the story didn’t matter.
                The jury returned the verdict in two hours. Nice job, Todd.

CDLP Chair Sarah Roland sends along this shout-out to fellow warriors for their help: “A big thank you to Stephen Evans, Richard Weaver, Kelly Pace, Sarah Gunter, Bill Harris, and Geof Tait, who all provided affidavits—based on their extensive experience—for me on short notice. I attached these to my Subsequent Motion for Additional Funds for Expert Witness. This is a felony murder case where the underlying felony is injury to a child. There are numerous injuries, most of which are internal. The original trial judge authorized only $1,000, denied my request for additional funds after a hearing, found my client nonindigent, and removed me. Several months later she found him indigent again and appointed different counsel. She retired, and the new judge reappointed me to the case. I presented the subsequent motion—complete with the transcript from the first hearing and the affidavits—and she authorized an additional $8,500, which should get me very close to what I need. This is HUGE in Denton County. THANK YOU!” The trial is now set for May. That’s some good teamwork, guys.