Said & Done



Last summer Martin Zimmerman of New Braunfels was appointed to represent a gentleman on a number of old retaliation, harassment, and bond-jumping charges. It was clear that the charges were nothing more than both the local constabulary and the client’s own family’s trying to rid themselves of a problem. The court-appointed attorney had given up on the case nine months prior to Martin’s appointment, when the local quack-in-the-box made a quick determination that D was competent to stand trial. The defendant then disappeared. Martin started a quest to find his client and get the help he needed. On three separate occasions Zimmerman was chewed out by the judge for wasting the court’s time. Zimmerman persevered and got his client re-examined by a more qualified examiner. The report indicated that his client not competent to stand trial. In fact, the examiner is convinced, based on his testing of the client and his review of the medical records, that a person with the client’s specific diagnosis would never be able to be declared competent to stand trial. Undeterred, the State is demanding a jury determination of the client’s competence. More to follow…

In Miles v. State, 2011 Tex. Crim. App. LEXIS 1665 (December 7, 2011), Christian Souza and Brian Portugal obtained a reversal and acquittal from the Court of Criminal Appeals in a codeine possession case out of Dallas County. The defendant had been sentenced to serve 21 years in TDCJ. The Court of Criminal Appeals held that the evidence was legally insufficient to prove quantitative factors as required under the codeine statute to support a Penalty Group One conviction. The Court rejected the State’s argument that a lesser-included offense was proven since the State failed to negate pertinent factors. Judge Cochran aptly observed in her concurring opinion that “this case is a mess.”

Souza and Robert Guest obtained a favorable resolution on appeal in a child sexual abuse case. The appeal was abated and remanded by the Second Court of Appeals for a hearing on a Motion for New Trial regarding a claim of ineffective assistance of trial counsel. The Court of Appeals entered its order on the eve of oral argument. Among the allegations of IAC: Trial counsel told his client he was eligible for probation when he wasn’t; trial counsel solicited testimony from the State’s expert that child abuse complainants were nearly always truthful; and more. On abatement, the trial court granted the Motion for New Trial pursuant to an agreement for dismissal of two of three counts and for a sentence reduction on the third, aggravated sexual assault of a child, from 17 to 5 years.

On December 21, 2011, McAllen attorney Chris R. Brasure obtained not-guilty verdicts for his client on 3 counts of First Degree Aggravated Sexual Assault of a Child. Chris’ client was originally indicted with 19 counts of Aggravated Sexual Assault of a Child. Thirteen counts of the indictment dismissals on 13 counts, the 139th District Court directed out 3 counts at trial, and the jury acquitted Chris’ client on the remaining 3 counts.

Clint Broden and Gena Bunn, representing co-defendants, obtained a reversal on all counts in the United States Court of Appeals for the Fifth Circuit. The defendants had each been sentenced to over 20 years’ imprisonment for money laundering. The Fifth Circuit reversed on all counts, holding that the evidence was insufficient to support the convictions and that using monies to pay for drugs is not money laundering. The Fifth Circuit ordered that judgments of acquittal be entered.

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