Said & Done



John Hunter-Smith of Sherman recently earned an instructed verdict in a case of felon in possession of a firearm. The judgment the State relied on was from Oklahoma. The issue was whether the Oklahoma felony would have been a felony in Texas, as required by the recently amended Penal Code §46.04(g). Since the State failed to prove that his twice-enhanced client had committed an act that would have been a felony in Texas, the “not guilty” order was entered.

Paul B. Love represented army recruiter charged with Aggravated Assault, Aggravated Sexual Assault, and Retaliation in the 122nd Judicial District Court of Galveston County. Client, an army recruiter in Humble, met the complainant when she inquired about joining the military. She did not meet qualifications, but developed a casual relationship with client, who spent the night at her apartment on at least one occasion. On a weekend beach party campout with complainant’s friends, relationship unraveled badly, resulting in charges. The jury returned “not guilty” verdicts on all three counts. Congratulations, Paul.

Tip Hargrove had this to say about one of our TCDLA benefits: I tell you this List Serve is better than a cold beer and a plate of tender ribs. Recently I asked advice from the group concerning a DWI client who was approached under the excuse of community caretaking function. I failed to mention that he blew over the limit and also had a loaded pistol in plain sight. Anyway, answering my inquiry were John Young, David Suhler, Eric Tor­berson, and Jordan Lewis. I was already familiar with the basic case law concerning community caretaking but wanted advice on how to collect my thoughts, and I needed some fact situations that had been ruled upon by the appellate courts. After receiving the post from these four fine gentlemen, I prepared a “mini brief” and made an appointment with the prosecuting attorney and his assistant. After making my presentation, they agreed to read the cases and give it some thought. About 15 minutes ago, the assistant prosecutor told me that I was right and she was going to refuse both the DWI and the UCW. Can you believe it!?! Thank you colleagues and thank you List Serve.

Susan Powell persuaded a grand jury to no-bill her client, who was accused of statutory rape/sexual assault of child despite client’s confessions. She was allowed to present a written argument to the grand jurors. The argument was that the female was the aggressor in that she climbed a locked gated fence, she was a runaway, and asked to use the phone. The “victim” claimed that her ride couldn’t come for 1 to 1½ hours. She was let in out of the cold. Once she got into the client’s bed, kissed him, and fondled him, he started responding and went to bathroom to get a condom. She mounted him, on top. Susan argued that her client did not cause penetration—the “victim” did, because she had to lower herself onto him. The statement showed that the accused couldn’t even move because the young woman was taller and heavier than he is. Susan used the “victim’s” CAC video, in which she admitted that she wanted to have sex that day, and argued that client didn’t cause penetration—he was used like a living, breathing dildo because she, per her own statements, wanted to have sex.

Defense attorney Don Carter of Fort Worth, with the assistance of Joaquin & Duncan, obtained a 50% downward variance before Judge McBryde last week in a criminal possession of child pornography case. The defendant’s guideline range under the United States Sentencing Guidelines was 78 to 97 months. Sentence imposed was 36 months.

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