Said & Done

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Kudos

Yikes: Last month’s “Catch of the Day” was attributed to Sarah Roland when, in fact, it was the work of Sarah Gunter (whose signature appeared at the end). A Sarah error that we deeply regret.

On Friday, April 14th, TCDLA Strike Force members represented Houston TCDLA member Mark Bennett in a matter involving a third party attempting to breach the attorney/client privilege on a contract issue between the lawyer and his client. Our TCDLA Strike Force members were successful in representing Mark and protecting the attorney/client privilege. A big thank you to both Katherine Scardino and Stan Schneider for their volunteer heroism.

TCDLA members rallied to testify in hearings on HB 626, related to the issues to be proven by DPS at an ALR hearing. It would have amended §724.042 of the Transportation Code to eliminate the issues of reasonable suspicion or probable cause to stop or arrest a defendant, and whether probable cause existed to believe that the defendant was operating a motor vehicle while intoxicated. This would have left the only issues at the ALR hearing: whether the defendant was operating a vehicle in a public place, was arrested, was requested to submit a specimen, and whether (s)he refused to provide a specimen. This would have made ALR hearings almost meaningless. It was pointed out to the committee that this would preclude a defendant from raising the issue of an illegal, racially motivated, or politically motivated arrest. A dozen TCDLA members, board members, and officers converged upon the Homeland Security Committee to raise red flags to the passage of this bill, including the dubious constitutionality and suspect factual underpinnings. At the end of the hearing, the author withdrew the bill and stated that she would offer a Committee Substitute in order to address concerns raised by the witnesses. That’s teamwork.

Bill Habern, Craig Jett, and John Bennet won habeas relief on the following facts:

  • Client convicted of aggravated sexual assault on 4/19/82 and sentenced to 16 years, entering prison 4/22/82;
  • Notice of Appeal filed 7/12/82, Dallas Court of Appeals reverses conviction on 11/19/84;
  • State files PDR 1/11/85, Court of Criminal Appeals sets bond, which client makes on 1/25/85;
  • CCA reverses Dallas CA on 2/19/86, remands to Court of Appeals, which affirms conviction on 7/14/87; no warrant issued until 11/16/07;
  • Client never called to appear before conviction court;
  • Client arrested for DWI in Missouri 5/21/09, extradited to Texas to serve his sentence—DWI later dismissed;
  • Client was productive member of society, with no new convictions, living openly under his own name; and,
  • Court of Criminal Appeals grants relief, giving day-for-day credit for all time on the street.

State concurs in the grant of relief, which is ordered by a unanimous court

Bill Trantham of Denton obtained a reversal of a felony DWI conviction, with a sentence of 3 years, from the Ft. Worth Court of Appeals. The 2nd Court of Appeals held that the evidence was insufficient to prove that D had been “twice (or even once) previously convicted of DWI in the State of New Mexico . . .” As it turned out, his client acknowledged guilt on one of the cases but told the court that he hadn’t had counsel in either case because he couldn’t afford one. The appellate court reviewed the documents and observed that there were no signed waivers of counsel in either. Though D did not contest the conviction for misdemeanor DWI in Denton County, since the jury was not instructed on the lesser included offense of Class B misdemeanor DWI, the appeals court entered an acquittal.

Steve Green from Athens earned an acquittal from a Henderson County jury on April 19, 2011, after a plea offer of 3 years’ confinement. In the aggravated assault-domestic violence case, his client was alleged to have stabbed the complainant in the head with a Bowie knife. The investigating officer agreed that the injury caused by that type of assault alleged would have been obvious and acknowledged that he didn’t observe any such injury.

Charles Soechting Jr.’s client avoided having his convictions for burglary of a habitation adjudicated and potentially being sent to prison for 3 years (Dallas County). The client, placed on a deferred probation to expire in December 2009, stopped reporting in May 2009 and had a poor record of making payments or doing the community service work. Charles’ investigation revealed that the capias on the MTR was not issued until November 2009, and that his client was unaware of the warrant until he was arrested in February 2011. He presented evidence that his client had not avoided the authorities and had not committed any other violations of the law. The court not only didn’t adjudicate the probationer; it also released him from custody in time to see his two-day-old daughter, born during his incarceration.

David Burrows obtained three not-guilty verdicts on DWI cases in Dallas County. Three not-guilty verdicts in a year might be enough for most of us, but David’s were all in one week. In each, David employed Charlie Foster, who had been a police officer for 28 years, certified in the standardized field tests. David developed testimony from Charlie relative to the new research on HGN testing. He was also able to evaluate whether the one-leg-stand and walk-the-line tests were conducted and graded correctly by the officers.

Paul L. LePak got an acquittal on April 15th on a murder trial in Bell County. He tried the case last year, and the jury hung 9–3 for acquittal. The State had offered 15 years on manslaughter without a finding of the use of a deadly weapon. The owner of the trailer where a shooting took place told officers that the victim, purportedly his friend, had a phone conversation with a man who then appeared at his trailer. Owner left, but said he heard one shot and found his friend bleeding in the trailer. Video from a convenience store showed the defendant talking to the victim, and the defendant’s DNA was found on a hat at the trailer. Paul argued victim could have had contact with any number of individuals after talking to his client in store, and numerous people’s DNA might have been in the trailer. Specifically, owner could have shot his “friend” and just blamed it on the last person to call there. Paul also argued that the evidence connecting various others who visited trailer was just as strong.

David Reddell and partner Jim Story got the two-word verdict for a client who was a co-defendant in a deadly conduct case in Nueces County. Client was accused of firing a shot from a car into a truck stopped five feet away, barely missing two young ladies, and police subsequently found a handgun under client’s bed. The co-defendant, whose car was ID’d by the victims, was originally thought to be the shooter and sole actor—until he convinced the police to wire him. He then conversed with someone he ID’d as the client, who admitted to being the shooter. Based on the audio and his promise to testify, the prosecutor knocked him down to 10 years deferred. David and Jim attacked the weaknesses in the case, not the least of which, of course, was the co-D’s wish to get a better deal. In addition, the officer who wired the co-D and followed him to D’s house was 150 yards away and couldn’t positively identify the person he met. So he, then, was the only person who could ID the voice on the audio, and he was the only one who claimed D was even in the car that night. The co-D, who had gangster photos of himself on his Facebook page holding a gun, had claimed all along that he didn’t know anything about the incident. Good work, guys.

 

Dispatches

Dear TCDLA,

Super application. I used it on my iPhone 4 as well but it is much more useful on an iPad, so thank you for adapting it.

I do a lot of federal criminal work, and I noticed that the federal sentencing guidelines Sentencing Table, which is a chart, comes out unreadable on both devices. Rather than appearing as a chart, it looks like a series of paragraphs explaining formatting. I keep the sentencing guidelines on my devices as a PDF file anyway, but the app would be more useful if it appeared as a table. I am pretty familiar with the table and there is no way to decipher it as it is currently presented.

Having said that I am, as always, grateful for TCDLA and its efforts, which, in this context, gives me hundreds of dollars’ worth of books that I can carry with me always. Incredible.

Best regards,
Charles van Cleef

 

Regarding the Sentencing Table . . . I’m looking at it right now and it is a little hard to read. The trouble is we’ve tried to cram so much information onto a tiny screen. Unfortunately, the chart itself is only a single page. I think I’ll contact Charles and see if we can figure out a way to improve the chart.

Regards,
Grant Scheiner
Chair, Computer & Technology Section

TCDLA
TCDLA
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