Said & Done


Ken Wincorn of Richardson scored a major victory for justice in post-Padilla immigration law recently in District Court No. 4. Defendant, a lawful permanent resident since 2002 with a wife and four U.S. citizen children, faced deportation based on a 2007 deferred adjudication of evading arrest that he pled guilty to based on advice from trial counsel. D’s attorney did not tell him the plea made him deportable, instead telling him not to worry about it. He had no other criminal history. The court agreed with Ken’s writ based on ineffective assistance and lack of adequate translation. The case revolved around the testimony of a client and his prior attorney involving accurate translation of immigration warnings and his right to a fair trial, among other admonitions. The court ruled that if a client did not understand a proceeding or its repurcussions then the trial did not meet our constitutional standards for a fair trial and the case could be reopened. Ken notes that for attorneys whose clients have pled and received deferred adjudication with serious consequences, this is an example that there may be relief. Congratulations, Ken, on a job well done.

Don Flanary of San Antonio came out on top in a highly publicized case recently when the Fourth Court of Appeals agreed with his pretrial writ of habeas corpus and struck down Penal Code 21.15(b)(1), the Improper Photography statue. The court held that the statute is a content neutral restriction on free expression protected by the First Amendment and thus subject to intermediate scrutiny. The court wrote that the statue does not survive intermediate scrutiny, and is void on its face because the statute is overbroad, reaching a substantial amount of constitutionally protected conduct.
 Don argued that “innocent photographers run the risk of being charged with violating the statute.” He told the court: “The statute would like to say, ‘You can imply the intent from the photograph.’ Regulating content based on intent is a regulation of thought.” As he noted later, “If a paparazzi takes a picture of Britney Spears and they publish it to make money selling magazines, that violates the statute.” Don says the State told him at oral argument that if they lost that they would seek discretionary review, so you can probably expect to see the CCA weigh in later. For the nonce, though, score it a big win for Don in a tough case. Kudos for his work requiring more specificity in a statute he judged too broadly written.

Laura McCoy of Mount Pleasant heard the two-word verdict for a client charged with Aggravated Sexual Assault of a Child. Defendant complicated efforts by admitting he was too drunk to recall much about the night in question. But as trial developed, alleged victim recited an ever-evolving recounting of events. Initially, she doesn’t actually recall a rape taking place, but she’s taken to hospital for a SANE exam—no DNA, no sperm, no injuries, no trace evidence. But then she does recall a rape and says she was lying on her side and client assaulted her. Six days later, she further embellishes the story: person lifts covers, gets in bed behind her, she never moves/pretends she is sleeping, person pulls down her shorts/panties to mid-thigh, “sticks it in.” Again, she never moves, bends over, turns over, anything.
 As Laura details, victim actually had a motive for lying. It came out in trial that she actually had some boys over to the house while momma was away that evening and she knew this was forbidden and would result in severe discipline. The lack of any kind of physical evidence whatsoever, and the fact that the story became more and more embellished the more she told it—compounded by the fact that the alleged “rape” was just anatomically impossible—provided the reasonable doubt. The jury was out for only about an hour before returning the two-word verdict. Laura graciously shared credit with her compatriots, saying “Thanks to everyone for their expert advice and tips! This listserve is truly invaluable.” Nice job, Laura.

Cindy Ermatinger and Kirk Lechtenberger scored a notable success recently—two NGs on two sexual assaults and two more on a pair of Aggravated Kidnapping charges in the 40th District Court in Ellis County. Their clients waited 40 months for their trial. They noted that the Ellis County District Attorney’s withheld information for 40 months be­fore releasing exculpatory/Brady evidence as the trial was going on. A hard-fought trial with what they term a couple “Perry Mason moments.” Congratulations, Cindy and Kirk.

Bill Trantham sent out congratulations to former TCDLA president Craig Jett, doling out high praise on the listserve: “He tried a two-day DWI trial here in Denton last Thursday and Friday. This is venue notoriously tough on DWI. He kept the Jury out till 1 am on Saturday, finishing after the courthouse closed at 5 pm on Friday. He did not win, but I bet the prosecutors will be much easier to deal with on Monday. Thanks, Craig. I hope we have more fighters come here.”

In August, the George Roland Scholarship was presented by the Collin County Criminal Defense Lawyers Association to Brian Peck. John Hardin, long-time friend and colleague of George, presented the award to Brian on behalf of the association and Roland family. Brian graduated from Boyd High School in ­McKinney. His parents, Sara and Chris Peck, were in attendance, as were Sharon Roland and Sarah Roland.

For the Record

Our own Robert Pelton received singular recognition in August when Representative Ted Poe of Houston’s 2nd Congressional District read an extended kudo into the Congressional Record. Poe, a former prosecutor and District Court judge in Texas, was effusive in his praise, reading Robert into history:

“Mr. Speaker, I would like to take this opportunity to recognize the remarkable career and outstanding community involvement of a great Texan, devoted public servant and my good friend, Robert Pelton. It is an honor for me to recognize Robert, not only for his numerous professional accomplishments and many contributions to our Houston community and the great state of Texas, but also for his service to our country.

“Robert and I met many years ago while I was working in the Harris County District Attorney’s Office as a prosecutor. Our friendship may have seemed unlikely as Robert, a criminal defense attorney, was more often than not defending the people I was prosecuting. Even though we were on opposing sides, there was a mutual admiration among us that to this day, has not wavered. I am grateful to call Robert a friend.

“Robert’s humble nature comes from his small town roots and strong patriotic upbringing in Abilene, Texas. As a child growing up in West Texas, Robert had a passion for reading. The books Robert read made Texas history come alive and his fascination with Texas legends and lawyers took root. He began to notice how folks less fortunate were mistreated and taken advantage of in his small town. So, at the young age of 14, he made up his mind to become a great lawyer, like the heroes he read about in his books. Robert still likes classic old west movies about good guys and outlaws.

“His West Texas roots taught him that his word was his bond. He lives by that character trait.

“Like many honorable men, Robert wanted to serve our nation and enlisted with the Texas Army National Guard. He trained as a combat infantryman, a job that is not for the weak of heart, with the 36th Infantry Division. After honorably serving from 1966 to 1972, Robert was discharged with the rank of Sergeant (E-5). Still determined to become a lawyer, Robert enrolled with South Texas College of Law after graduating from McMurry College in Abilene. During law school, he served as Chief Prosecutor of the Honor Court and as a Justice on the Honor Court. And the rest is history.

“During his internship with the famous attorney Jim Skelton, Robert worked on a case where Mr. Skelton represented David Owen Brooks—a defendant in the largest mass murder case in the United States at the time. After helping with this case, Robert realized that his calling was to defend those accused of crimes.

“Since May 1975, Robert has represented numerous people during his legal career. Of all of his clients, a highlight in Robert’s legal career was representing the late Marvin Zindler, as his personal lawyer for over 30 years. Marvin Zindler was known for his consumer reporting—on ABC News on channel 13—one of the first in the business to do so—letting the unsuspecting public in on the down and dirty dealings of local businesses throughout Southeast Texas. Marvin was a fighter for the little man and defended those who were swindled or scammed—seeking retribution the best way he knew how, with a bright light, an all-seeing camera lens, and a television audience. It makes sense that Robert represented this local legend.

“Robert’s extensive knowledge of the justice system and his incredible work ethic earned the respect of his colleagues in the law profession. Over 50 of Robert’s felony criminal cases have resulted in no-bills due to the Grand Jury Defense presentations that his team worked on. In 2012, he helped prove a wrong man had been arrested, which resulted in another capital murder case being dismissed. The impact of Robert’s work is far reaching.

“Over his career, Robert has maintained a strong focus on ethics and has received numerous accolades. He is the Founder and Chairman of the Ethics Committee for the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association. In 2011, he recognized a need for criminal defense attorneys to have access to an ethics hotline and urged the Texas Criminal Defense Lawyers Association to create one. In addition, Robert has been named by H-Texas Magazine as one of Houston’s Best Criminal Defense Lawyers each year from 2004 to 2010 and as well as one of Houston’s “Top Lawyers for the People” each year from 2004 to 2010. In 2012 and 2013, Robert received the President’s Award from the Texas Criminal Defense Lawyers Association in recognition of his excellent work during those years. In addition to these honors, Robert has recently been named by the College of the State Bar of Texas as the recipient of the Jim D. Bowmer Professionalism Award for 2012. This high honor is awarded annually to an outstanding College member based on achievement or contribution to professionalism. Robert continues to contribute to the legal profession by authoring monthly columns in The Defender and the Voice for the Defense magazines. He also serves on the faculty of the Center for American and International Law.

“In addition, there are books written about several of his high-profile cases, including Ashes to Ashes and another book about Pam Perillo, who was eight hours away from execution, but because of a writ hearing in Federal Court that Robert filed, her life was spared. Several of his well-known cases, were documented on national TV specials: “Women on Death Row” and “Caught on Camera.”

“As a former prosecutor and then judge, I know how consuming this career can be. But, I also know how meaningful and rewarding it can be. Robert’s innovation, determination, and compassion for helping others makes him one of the best attorneys in the nation. I am truly blessed to consider him one of my dearest friends and am honored to give him the recognition that he deserves.

“And that’s just the way it is.”

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