Lawyer in Georgia

  On July 16, 2013, one the Houston Courts of Appeals (Houston is the only city in Texas that has two appellate courts) issued a ruling concerning delay in criminal cases that is caused by the State. It is common for the defendant to raise constitutional objections when there is a delay in prosecution that is not the defendant's fault. In 1995, the defendant was accused of sexually assaulting a child. The police officer who investigated the alleged crime was a detective who had only recently been promoted. The detective made several missteps in gathering evidence and in maintaining records of the interviews. As a result, he believed he did not have enough evidence to arrest the defendant for sexual assault of a child. His investigation remained "dormant" until 2003 when, responding to pressure from supervisors to clear out cases that were no longer being actively investigated, the detective deactivated the case. In 2010, the alleged victim (now an adult) wanted to know wh

  Defendants in Dallas often have problems accepting their conditions of probation (community service). This can be difficult to address if the Dallas County District Court is not receptive to changing the conditions or if the problems are not set up for appeal at the time of the original conviction or at the time of a revocation of probation. A defendant cannot simply appeal probation conditions to the Dallas Court of Appeals during his probation when not done as part of an appeal from an order granting probation or a judgment of conviction. This applies even when the trial court has modified the conditions at some point subsequent to a judgment that was not appealed.  https://askcompetentlawyer.com/   No Texas appeals court does not have jurisdiction to consider an appeal simply from an order altering or modifying the conditions of community supervision. Challenges on appeal about probation conditions often involve arguments that the conditions are too vague. A legal obligation that

  INVENTORY PER DEPARTMENT POLICY Its been the better part of a year since the Dallas Court of Appeals announced its decision in an important vehicle-search case without citation in additional cases, which could mean that the decision has been heard. The defendant who won on appeal was arrested by the Grand Prairie Police Department, and the Dallas County District Attorney conducted the prosecution. An officer with the Grand Prairie Police Department pulled over the defendant after seeing him roll through a stop sign. The defendant had several valid warrants out for his arrest, so the officer placed him in custody and handcuffed him. Because there was no one else in the car, the officer decided to order that the car be impounded and began to inventory its contents. As a general rule, police officers can "inventory" the contents of a car.  https://askcompetentlawyer.com/civil-litigation/  Officers can inventory in order to protect the property of the driver, to protect themsel

  Because it affects so many resident aliens and other immigrants in the process of becoming citizens in Dallas and other metropolitan parts of Texas, I have been keeping my eye closely on ongoing developments in Texas applying the Supreme Court's 2010 decision in   Padilla v. Kentucky . In Padilla, the Supreme Court held that defense lawyers have a duty under the Sixth Amendment of the United States Constitution to accurately and specifically advise a defendant about deportation and other immigration consequences that will result from a guilty plea. A defendant will plead guilty either under an "open" guilty plea to a judge or jury, where the punishment is left to the judge or jury, or in a situation involving a plea bargain, a more common scenario. The case law says that, whenever a defendant pleads guilty and waives his rights, the defendant has to be informed about immigration consequences in terms that are "succinct, clear and specific." In a scenario where

  On July 16, 2013, one the Houston Courts of Appeals (Houston is the only city in Texas that has two appellate courts) issued a ruling concerning delay in criminal cases that is caused by the State. It is common for the defendant to raise constitutional objections when there is a delay in prosecution that is not the defendant's fault. In 1995, the defendant was accused of sexually assaulting a child. The police officer who investigated the alleged crime was a detective who had only recently been promoted. The detective made several missteps in gathering evidence and in maintaining records of the interviews. As a result, he believed he did not have enough evidence to arrest the defendant for sexual assault of a child. His investigation remained "dormant" until 2003 when, responding to pressure from supervisors to clear out cases that were no longer being actively investigated, the detective deactivated the case. In 2010, the alleged victim (now an adult) wanted to know wh

  In Dallas County, a defendant is sometimes held in custody for an extended period before his case is resolved by virtue of a high bond amount. Of course, this situation can result in an favorable plea bargain or ill-preparedness for trial, not to mention the injustice if the defendant is never indicted. The problem was   illustrated in a case this week from the Fort Worth Court of Appeals . In Texas, the District Attorney is required under law, when the defendant is in custody, to bring a case to trial within 90 days at risk of a bond reduction or release on personal recognizance. There is an additional right that applies to the right to a dismissal after a defendant spends 180 days in jail without an indictment, but such dismissals are without prejudice, meaning that the State could still indict and start the process over. These rights are created under Texas law by the legislature, and they exist in addition to the constitutional speedy trial protection under the federal constituti

  Earlier this month, the Texas Court of Criminal Appeals at Dallas recently decided an important sex offender case out of Kaufman County, Dallas County's immediate neighbor to the southeast. The Court addressed the longstanding issue of the rights of sex offenders who are on probation in Texas, and, in its opinion, recognized their basic constitutional right against self-incrimination, as guaranteed by the Fifth Amendment. The defendant sex offender had pled guilty to a charge of indecency with a child and was undergoing treatment in a program that required him to take several polygraph (lie detector) tests. For one year, he successfully passed the polygraph tests and attended over fifty group therapy sessions, as required by the program's guidelines. When the defendant took his third polygraph test, he was questioned about any previous sexual offenses he might have committed. The defendant properly replied that he would not answer any questions that might implicate him in a c

  his week the Texas Court of Criminal Appeals applied two recent United States Supreme Court cases in an appeal from Dallas County concerning a defendant's Sixth Amendment right to confront and cross-examine witnesses in a common scenario in controlled substance cases: the "reviewer" from the laboratory that tested the substance (cocaine) testifies as an expert witness to identify the substance with reference to the report of a subordinate chemist who conducted the testing, instead of having the subordinate chemist testify in person. The Court of Criminal Appeals resolved the issue in favor of the defendant; the decision of the Dallas Court of Appeals that remanded the case for a new trial. The rule in Texas is now clear that testimony from a witness about identifying a substance must be given by that witness, not merely by a testing procedure reviewer just repeating what was written in the non-testifying expert's laboratory report. In other words, the defendant'

  In the Fourth Court of Appeals of Texas, located in San Antonio, the Court recently had a meaningful occasion to consider a variation on the normal type of claim of ineffective assistance of trial counsel in the context of plea negotiations. In this case, the lawyer provided ineffective assistance by telling a client to reject a plea offer. Findings of violations of the right to effective assistance of counsel are usually based on failure to investigate, prepare for trial, or being unfamiliar with basic rules. These problems normally become evident at trial, after a plea bargain has been rejected. Thus, when they are raised in the plea bargain context, it is normally because the lawyer should not have told the defendant to take the plea offer. The defendant was charged with multiple counts of sexual assault of a child. In the pre-trial proceedings, the prosecution offered the defendant a plea bargain: ten years in prison.  https://askcompetentlawyer.com/civil-litigation/  Based on hi

  In October this year, the Second District of the Texas Court of Appeals at Fort Worth reversed a conviction in a Tarrant County DWI case on grounds having to do with the legality of the Fort Worth police stop that lead to the discovery of the evidence against the defendant. The Court of Appeals held that there were not sufficient circumstances to justify application of the “community caretaking” exception to fourth amendment protections that would otherwise make the stop illegal. The Fort Worth police officer was conducting “preventative patrol” when he pulled up to a light next to the defendant. The passenger was sitting “hunched over” in her seat. The officer thought that she might be unconscious and thus in need of medical attention, despite her riding with the defendant.  https://askcompetentlawyer.com/business-torts/  The officer was concerned, based on her posture and on the odor of alcohol, that she could have been suffering from alcohol poisoning. The officer pulled the defen

  In late June the Texas Court of Criminal Appeals affirmed a judgment in a case decided by the San Antonio Court of Appeals that illustrates how the courts handle a situation when there is long delay between an indictment and an arrest. The question is whether the defendant’s constitutional right to a speedy trial under the Sixth Amendment of the United States Constitution was violated when the defendant was arrested in 2010 for child abuse offenses that were filed against him in 2004. The offenses were alleged to have transpired in 2002, about a year and half before the 2004 indictment. The defendant did not know about the 2004 indictment until he was arrested in 2010. He remembered detectives talking to his parents in 2004, but the detectives never contacted the defendant. The State argued that the defendant was not entitled to claim his speedy trial rights under circumstances relating to his DWI case. In 2006, there was a motion to revoke his probation that he was granted in 2003 o

  The Texas Second District Court of Appeals at Fort Worth ruled in May on a common hearsay problem in child sexual abuse cases.   The ruling was made specifically in a case that was tried in a District Court in Tarrant County. In child sexual abuse cases there are basic rules about using statements that the child made to adults. The primary rule is an exception to the rule that hearsay (an out-of-court statement offered to prove the truth of the matter asserted) is inadmissible.  https://askcompetentlawyer.com/sex-crimes/  When the statement is made to the first adult who heard fairly substantial details from the child, the statement of the child is admissible despite the general hearsay rule. Sometimes the State runs afoul of this “outcry exception” when the statements are really not very detailed or when multiple outcry witnesses are used. There is a fall back that saves the State in most situations where the outcry statement cannot be used. In many child abuse cases, such as in the

  In a case where the defendant was convicted of cocaine possession following his arrest in Bourne, in Kendall County, the Fourth Court of Appeals in San Antonio reversed the decision of the trial court that refused to grant the defendant’s motion to suppress the evidence against him. The Court of Appeals remanded the case to the trial court for a new trial without the evidence. When this happens, the State will normally have to dismiss the case, since there will be no evidence that was not obtained by the police. The police acted illegally when they apprehended the defendant on the sole grounds that it was a bad neighborhood and that the defendant ran away when he saw them. The police found drugs on the defendant after the illegal arrest. https://askcompetentlawyer.com/complex-litigation/  The question on appeal was whether subsequent discovery of active warrants excused the otherwise illegal conduct. The Court of Appeals applied the standard “attenuation” test for this type of circum

  In May, the Dallas Court of Appeals   decided   an appeal from Collin County concerning judicial use of Facebook. The defendant unsuccessfully argued that the judge was not impartial, because the judge and the father of the defendant's girlfriend were designated as Facebook friends, and because the judge received a non-adverse communication from the father of the defendant's girlfriend via Facebook. The Dallas Court of Appeals noted that no Texas court had addressed a judge's use of social networking media until now. The American Bar Association and various legal scholars seem to believe that a judge's use of social media is harmless, so long as it does not violate any rules of confidentiality or judicial integrity. In fact, some people have argued that judges would become out of touch and ineffective if forbidden to have social lives, and these days that includes using social networking media. In this case, the Court of Appeals accepted the District Attorney's st

  On June 11, 2013, the Texas First District Court of Appeals at Houston found that a search warrant had been issued on evidence obtained through an illegal search. The Court of Appeals held for the defendant, reversing the conviction and ordering a new trial. Officers with the Department of Public Safety received information that the defendant was growing marijuana in his second floor apartment. They conducted surveillance on the apartment and observed a male individual coming and going "well before and after...business hours." Through his "training and experience," an officer believed this to be consistent with drug activity. He called for a canine unit. The dog was led up an outside stairway that led to the defendant's apartment. On the stairway, the dog gave a "positive alert," indicating that there were narcotics in the apartment. Using the evidence of the drug-detecting dog's alert, officers obtained a search warrant for the apartment and sei

  On August 12, 2013, the Dallas Court of Appeals announced its decision in a case on appeal from the Dallas County Criminal Court Number One, which is presided over by Judge Dan Patterson, a former Dallas defense attorney. The defendant   successfully appealed   after being convicted by a jury of intentionally carrying a weapon while not on his own property. The testimony of the investigating police officers only established that the defendant was carrying a weapon in the common area of the condominium complex where he lived. When asked why he had a gun in plain view, the defendant said he performed walk-throughs of the condominium complex, although he was not a state-certified security guard. https://askcompetentlawyer.com/complex-litigation/  He was arrested. The president of the condominium complex testified on behalf of the defendant. She confirmed that he owned a unit in the complex and also testified that every condominium owner possessed an undivided interest in the common area

  A particular basic question almost always comes up when dealing with a charge of driving while intoxicated: Did the police officer make a lawful traffic stop, or did he improperly stop and detain the driver? The issue has important constitutional implications; the Fourth Amendment protects citizens against unreasonable searches, seizures and detentions. A traffic stop case decided by the Texas Court of Appeals in San Antonio in late June considered the Fourth Amendment and its requirement of "reasonable suspicion" to justify the stop. In January 2012, an officer with the Kerrville Police Department responded to a call reporting an allegedly intoxicated driver. After spotting the vehicle, the officer followed it for about a minute before initiating a traffic stop. In his report, the officer said this was because the driver failed to signal continuously at least 100 feet before conducting a right-hand turn. The driver was then arrested for the offense of driving while intoxic

  This week the Texas Court of Criminal Appeals reversed the decision of the Texas Court of Appeals at Dallas in a marijuana case where the defendant was convicted by the District Attorney in Kaufman County. The Texas Court of Criminal Appeals decided that, since driving in the left lane without passing was not a traffic violation, the defendant should not have been stopped by a Kaufman County sheriff's deputy. Consequently, there was no basis to search the defendant or his vehicle. The male driver was followed for a mile by the sheriff's deputy, who observed that the driver was staying in the left hand lane, although there were no cars in the right hand land for him to pass. The deputy pulled the driver over and arrested him after discovering marijuana in his possession. The driver was charged with possessing under two ounces of marijuana. The trial court refused to suppress the marijuana as evidence against the driver. Although the driver argued that he did not know the left

  On July 17, 2013 the Texas Fourth Court of Appeals at San Antonio held for the defendant in an appeal where the defendant argued that the trial court did not have the authority to order her to pay $70,000 to charity as restitution as a condition of her probation on charges involving extortion. The victims of the extortion were unsuspecting men; the charity was not involved. As a legal matter, "restitution" is money that a defendant is ordered to pay so that she will not be "unjustly enriched" by her crimes. It is the part of her punishment that attempts to "right the wrongs" for which she has been convicted. Accordingly, restitution may only be ordered to be paid to specific victims of the defendant's crime or to the crime victims' funds controlled by the State. The defendant successfully argued that she could not be ordered to make restitution to a charity because she had not been convicted of a crime against any charities. Restitution is a nece

  A particular basic question almost always comes up when dealing with a charge of driving while intoxicated: Did the police officer make a lawful traffic stop, or did he improperly stop and detain the driver? The issue has important constitutional implications; the Fourth Amendment protects citizens against unreasonable searches, seizures and detentions. A traffic stop case decided by the Texas Court of Appeals in San Antonio in late June considered the Fourth Amendment and its requirement of "reasonable suspicion" to justify the stop. In January 2012, an officer with the Kerrville Police Department responded to a call reporting an allegedly intoxicated driver. After spotting the vehicle, the officer followed it for about a minute before initiating a traffic stop. In his report, the officer said this was because the driver failed to signal continuously at least 100 feet before conducting a right-hand turn. The driver was then arrested for the offense of driving while intoxic