Houston Criminal Defense Lawyers



Just Because You Can, Doesn’t Mean You Should – Revisited


One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.



Not Your Typical Hollywood Ending


Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.

“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”

Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.

It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.

For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.

Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.

In your not-so-typical Hollywood ending, the girl does not get the boy! In this one, the girl loses everything after lying and cheating.


System is Broken


‘This idea of total incarceration just isn’t working.’—Justice Anthony Kennedy

Justice Kennedy and Justice Breyer speak out against a broken system.

I agree! Incarceration is expensive. Recidivism rates are higher following incarceration because those offenders can no longer get jobs. They didn’t get “help” in prison. They are left without sufficient resources following long periods of incarceration. 

Instead, recidivism is lower following probation programs. Probation is cheaper. Probation and diversion programs build lives rather than tear them down. 

While usually siding with law enforcement, Justice Kennedy points out, “The corrections system is one of the most overlooked, misunderstood institutions, functions, that we have in our entire government.” 

Finally, we have respected judiciary calling for reform and thought. Mandatory minimums don’t make sense. Supervision leads to better return to society. Let’s look at other models for improvement of our broken system. 




My son the traffic engineer was attending a conference in Aggieland and forwarded me the following statistics:

Texas’ 10 fastest growing counties by 2050 (Percent)

  1. Hays County; 2010 population – 157,107; 2050 population – 824,070; Change – 666,963; Percent change – 424.50%
  2. Collin County; 2010 population – 782,341; 2050 population – 3,801,840; Change – 3,019,499; Percent change – 386.00%
  3. Fort Bend County; 2010 population – 585,375; 2050 population – 2,738,553; Change – 2,153,178; Percent change – 367.80%
  4. Williamson County; 2010 population – 422,679; 2050 population – 1,976,958; Change – 1,554,279; Percent change – 367.70%
  5. Denton County; 2010 population – 662,614; 2050 population – 3,031,597; Change – 2,368,983; Percent change – 357.50%
  6. Montgomery County; 2010 population – 455,746; 2050 population – 2,061,972; Change – 1,606,226; Percent change – 352.40%
  7. Rockwall County; 2010 population – 78,337; 2050 population – 333,656; Change – 255,319; Percent change – 325.90%
  8. Kaufman County; 2010 population – 103,350; 2050 population – 438,487; Change – 335,137; Percent change – 324.30%
  9. Parker County; 2010 population – 116,927; 2050 population – 453,381; Change – 336,454; Percent change – 287.70%
  10. Bastrop County; 2010 population – 74,171; 2050 population – 272,723; Change – 198,552; Percent change – 267.70%

Texas 10 fastest growing counties by 2050 (Absolute)

  1. Harris County; 2010 population – 4,092,459; 2050 population – 7,527,827; Change – 3,435,368; Percent change – 83.90%
  2. Collin County; 2010 population – 782,341; 2050 population – 3,801,840; Change – 3,019,499; Percent change – 386.00%
  3. Denton County; 2010 population – 662,614; 2050 population – 3,031,597; Change – 2,368,983; Percent change – 357.50%
  4. Fort Bend County; 2010 population – 585,375; 2050 population – 2,738,553; Change – 2,153,178; Percent change – 367.80%
  5. Tarrant County; 2010 population – 1,809,034; 2050 population – 3,497,034; Change – 1,688,000; Percent change – 93.30%
  6. Montgomery County; 2010 population – 455,746; 2050 population – 2,061,972; Change – 1,606,226; Percent change – 352.40%
  7. Williamson County; 2010 population – 422,679; 2050 population – 1,976,958; Change – 1,554,279; Percent change – 367.70%
  8. Bexar County; 2010 population – 1,714,773; 2050 population – 3,179,649; Change – 1,464,876; Percent change – 85.40%
  9. Dallas County; 2010 population – 2,368,139; 2050 population – 3,528,964; Change – 1,160,825; Percent change – 49.00%
  10. Hidalgo County; 2010 population – 774,769; 2050 population – 1,779,370; Change – 1,004,601; Percent change – 129.70%

You can locate all kinds of good information at the Texas State Data Center


Error to display MADD plaque


Today, in an interesting opinion regarding the refusal of PDR, Judge Cathy Cochran notes the error of a judge displaying a MADD (mother’s against drunk drivers) plaque during a DWI trial.  Simpson v. State  (PDR is the acronym for “petition for discretionary review.” Refusal of PDR indicates the high court has refused to hear the petition.)

Judge Cochran, a well respected jurist, says: “I write to squarely say what the court of appeals’s majority assumed: This was error.”  Though she states the error was neither inherently prejudicial nor actually prejudicial, she made reference to a Louisiana judge’s comment regarding a poster “decorating” his courtroom: “It is axiomatic that a courtroom is not the judge’s living room for him to decorate as he pleases. It is the taxpayer’s forum for dispensing justice to all citizens–defendants and victims alike.”

“I believe that jurors would reasonably conclude that the plaque in this case reflected the trial judge’s alignment with MADD. The plaque was not hung in his chambers where personal items belong. Rather, as appellant notes, the plaque was the only object displayed by the judge and sat directly below the court’s official seal and between the United States and Texas flags. I agree with Justice Sharp that the public display of the MADD plaque “in what is to be a hallowed sanctuary of impartial justice bespeaks a fundamental misunderstanding of the very proprietorship of that public space: it is the
people’s courtroom, not an oversized ante-room of some judge’s chambers.””

To sum it up folks, it is the taxpayer’s courtroom, not the judges.  It should be respectful and neutral.  Citizens appearing before the court ought to be able to rely on the impartial nature of the judge.  As Judge Cochran concluded, “such partisan displays in any public courtroom should be strongly condemned.”


Fair Justice


I’ve said it a hundred times: education is key. Know your candidates and be an educated voter. But also know the roles of those you are electing.

Judges are here to follow the law, be fair and impartial, and provide an equal playing field for those appearing in their court. They are not here to be “tough on crime”. They are not here to “protect our community”. They are not here to “be like prosecutors”.

Watch out for those candidates and current officials who confuse their role. This does our system a disservice and works against the very foundation of our courts.

The Harris County Criminal Lawyers Association addressed this issue today in a Chronicle op-ed you should read. I’m proud to have been a part of speaking out against an unfair judiciary.

Certainly we have good judges and good candidates, but you must educate yourself to know which ones they are!