Houston Criminal Defense Lawyers

divider

Archive


(il)Legal Copycat

/ 4 Comments

In what Internet universe would a lawyer steal the words and work of another and not expect to be caught or called out? Why would a lawyer post “news” on their website by simply trolling the Internet and stealing others news? And, if a lawyer were going to do so, would they just take the easy way out and simply copy what the State Bar has already curated and pass it off as their own?

If you are a lawyer at Brown & Musslewhite in Houston, you would be lazy, plagiarize steal content, and pass it off as if some “author” in your firm wrote it.

orig

Jeff Musslewhite earned his law degree from The University of Baltimore School of Law. Apparently this is one school that doesn’t teach criminal law or copyright. Hell, they may not even teach ethics. Well, maybe it’s not fair to blame the school. After all, his law partner Lori Brown attended the University of Texas and didn’t learn the basics either.

Instead of creating and publishing their victories, successes, thoughts, and business plans, they have a “news” feed that does nothing but regurgitate the blog posts curated by the State Bar of Texas’ Texas Bar Today blog. The folks over at Texas Bar Today spend time reading and then passing on relevant information by providing links to various lawyers’ posts. When they do so, they identify the original writer, giving a link credit to the author, and simply send the interested reader directly to the original post.

Apparently, that’s too much work for the lawyers at B&M. They would rather just copy the work of the Texas Bar Today folks, create a fake author page, and link the readers back to themselves. By creating fake author pages, they give the appearance of the author writing or working for them. And trust me, I do not write for them, and I certainly would not work for them.

To be fair, their posts begin with “Written by JOANNE MUSICK” and “Originally published by JoAnne Musick.” Yet, when you click the link for JOANNE MUSICK, it circles right back to their site and a handy-dandy collection of everything they copied from me (which is only 2 [correction: 4, 2 as JoAnne Musick and 2 as JoAnneMusick] posts so far – but I’m not the only one they are copying – they have also copied HCCLA and HCCLA’s Reasonable Doubt).

They say imitation is flattery. Well, I’m not flattered. I find myself, much like Ruth, pissed:

When you like my blog work, I’m pleased. When you link to my site, I’m flattered. When you request a reprint, I’m delighted. When you rip off my work, even with an attribution, I get pissed!

You like my writing? Great! Let me know and I’d probably give you permission to use it. Want to curate like the Texas Bar Today folks? Great! Give proper links and I wouldn’t care. But don’t just blatantly utilize my words to enhance your google presence and seem relevant.

The interesting questions: Is this their work ethic? Do they really do real lawyer work? Or do they just copy others? Didn’t we learn in grade school that plagiarism was wrong? If they show deceit in their website, will they deceive a client? The court?

I have no desire to find the answers to these questions. I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!

Update: see what they are copying here


separator

Can My Client be Impeached with Prior Juvenile Adjudications?

/ 1 Comments

Well, generally, no, but it depends. (Don’t you just love that answer!)

 Texas Rules of Evidence, Rule 609(a) speaks generally to impeachment with criminal convictions. Juvenile adjudications are not criminal convictions, and are therefore, generally not admissible for impeachment purposes. Rule 609(d) specifically addresses juvenile adjudications:

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or

(2) the United States or Texas Constitution requires that it be admitted.

A close reading of Rule 609(d) allows a juvenile to be impeached with his prior juvenile adjudications if that child is testifying in his own juvenile trial, but it does not extend to non-juvenile proceedings. In other words, the prior juvenile adjudication cannot be used to impeach an adult in a criminal proceeding.

Notice the distinction: a prior juvenile record cannot be used for general character impeachment of a witness. However, pursuant to 609(d)(2) the Constitution may require a prior juvenile adjudication to be admitted for impeachment purposes. For example, if a witness is currently on juvenile probation that record might be used to impeach that witness under a theory of possible bias or prejudice (a juvenile on probation might have been offered a favor for his testimony or may believe he will receive a favor for his testimony). Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974); see also Foster v. State, 25 S.W.3d 792 (Tex. App. – Waco 2000).

So, for a juvenile on trial in a juvenile proceeding, his own priors can be used to impeach him. Outside of this situation, it will require a Constitutional issue such as bias or prejudice before a prior juvenile adjudication will be admissible for impeachment purposes.


separator

Unforeseen Consequences

/ 2 Comments

Criminal convictions have intended consequences. They carry punishments that include life and liberty. Convictions can cause someone to be jailed for a period of time. They can cause payment of fines and participation in rehabilitative programs. But what happens when the punishment is over?

After the punishment comes the collateral consequences – the unforeseen consequences that can haunt the rest of someone’s life. I’ve touched before on this before as I covered whether one’s debt to society is ever truly paid in full. But now I want to focus on some of the very real and very specific consequences that are indirect but just as important.

Financial Consequences

Financial consequences include employment restrictions, licensing for specific jobs, financial aid and government assistance, educational benefits, social security benefits, asset forfeiture, and surcharges.

Employment is the most commonly recognized consequence. Certain convictions can cause employers to simply pass on hiring or fire a particular employee. This could be simply because the employer chooses to base employment on certain criteria or because particular licenses are required for employment.

The Texas Occupations Code sets general rules for the licensing of plumbers, cosmetologists, boxing promoters, pawn shop owners, air-conditioning contractors and so many more. Depending upon the type and severity of the conviction, licensing may be denied or suspended. This leaves these folks out of work and unable to meet their financial obligations. Additionally, some specific professions require their own licenses or accreditations such as lawyers, architects, dentists, doctors, engineers, social workers, therapists, and more.

Financial aid and government assistance such as grants, government loans, and even food stamps are tied to collateral consequences for those convicted of certain crimes. Any possession or distribution of a controlled substance (including marijuana) can temporarily or permanently bar students from federal and state educational grants and loans.

Social security benefits are stopped for a person incarcerated more than 30 days on a conviction. Though this makes some sense, it also sets up additional financial obstacles for that person’s family.

Federal law imposes a lifetime ban on food stamps and federally funded public assistance for drug felons. And Texas follows the federal law. This is another example that harms not only the convicted felon but his entire family.

Creating large financial hardships, the government will often forfeit assets such as cars, homes, and cash. Understandably, felons should forfeit illegal proceeds and the assets purchased by such illegal proceeds, but our broad system of forfeiture allows the government to cast a much broader net. Did you realize the government can seek to forfeit the car used to flee the scene of a crime? Did you know some jurisdictions go after the personal homes of those convicted of sexual offenses committed inside the home.

Rounding out our financial consequences are the surcharges placed on licenses such as a drivers license. In a DWI conviction, the Department of Public Safety assess a $1,000 -$2,000 per year, for three consecutive years, surcharge on your right to drive.

Other Consequences

In addition to financial consequences, there are a great variety of other consequences which include deportation, restrictions on possession of firearms and ammunition, inability to hold public office, loss of voting privileges, and even restrictions on child custody and conservatorship.

Restrictions on custody and conservatorship are often overlooked or unknown. A protective order in place for family or domestic violence will prevent a parent from being a joint managing conservator of his own children. Additionally, for safety reasons, access to one’s own children may be restricted or supervised based on prior abuse.

With all of these consequences and more, it is imperative that lawyers understand these consequences and fully explain them to clients deciding whether or not to “take a deal” in their criminal accusations. With all these lasting consequences, it is clear that most people cannot truly pay their debt to society in full and move forward.

 

You can look up specific collateral consequences by state here


separator

The Defender Summer 2015

/ 0 Comments

  Just when I think I run out of steam, another Defender energizes me!

View and download this issue here

We have an amazingly talented group of writers who regularly assist me by providing research and writing on current criminal justice topics. And we have an amazing designer who brings the pages to life through pictures. 

How this became such a passion for me I will never understand. But, it has! I still enjoy the privilege of serving as editor for this fantastic publication.


separator

Controlling Chaos and File Checklist

/ 0 Comments

If your practice is like mine, chaos can easily take over. Each client’s question is the most important question in the world…to him. Sure it’s important to you as well, from a representation perspective, but you must manage the chaos before it takes over.

  1. Set Priorities

Do you really need to read every email as it comes in? Not likely. Turn off email alerts on your phone! Every alert draws your attention away from the task at hand. Minimize the alerts and minimize the distractions. Email can be a priority, but set a time for it to be the priority rather than all day and all night.

  1. Calendar

Follow a calendar: paper or electronic. Make sure every appointment and appearance is recorded. Schedule time for emails. Schedule time for phone calls. Schedule time for research and case review. The more you schedule the more you realize just how busy you are and how productive you can be.

  1. Electronic Files?

Paper is just fine. Create a file for every client. Keep track of everything you do. Make notes about conversations with prosecutors and clients. Keep a running list of things to do. Follow a checklist to make sure you aren’t forgetting something. Do you need a paperless office? Maybe, maybe not. If you have time, scan everything. Get a Dropbox or similar online storage and place only current files in it. Then you will have access from your smartphone or tablet anywhere, anytime. Once a file is closed, consider scanning its entire contents for storage. Electronic storage is must easier than warehouse space; just make sure you have adequate backup systems in place so you don’t lose your electronic file.

  1. Face the Music

Clients get mad. Clients get aggravated. Clients blame you when they don’t get the plea offer they want. Instead of becoming defensive or avoiding, call the client or schedule a meeting. Review the process and options. Before speaking though, give the client an opportunity to talk or even vent. Sometimes they just want to be heard.

  1. Make a List

Keeping a “to do” list is simple and effective. It can be written or electronic. I’m currently using Evernote to keep a master list of general items plus categorized lists for specific projects. Having a list helps you set goals for getting tasks done and helps you visualize the priorities. Anything not done today gets done tomorrow!

View and Download original print here: PP Summer 2015


separator

49.04 + 37.09 = NOLLE; Police Video Exploits

/ 0 Comments

On July 23, 2011, C.O. was arrested for DWI by Harris County Sheriff’s Deputy Anthony Aulds. According to the report, Deputy Aulds received a call about a Chevy Silverado following an intoxicated driver westbound on Gulf Pump Road. The call slip said the Toyota had run off the road three or four times.[1]

At 02:08 hrs, Deputy Aulds caught up to the Toyota and stopped it in the 6900 block of Sheldon Road. He reported that C.O. was the driver, that she had the strong odor of an alcoholic beverage when he made contact. He also reported that when C.O. got out of the car, she stumbled and lost her balance. He subsequently administered the SFST, and placed C.O. under arrest. She was read the DIC-24 at the scene and consented to a breath test. C.O. was then taken to the Wallisville substation (HCSO District 3) and at 03:24 hrs, an Intoxilyzer test showed 0.12% BAC. Both the SFST results and the 15-minute observation time were thoroughly documented.

At first glance, it looked like a pretty good case for the State. There was a civilian witness who observed dangerous driving facts, a good report, and the proper 15-minute observation time for the breath test. But 178 days, 13 motions and 2 Brady hearings later, the case was dismissed. The Motion to Dismiss read, “witness testimony and admissions during PTRC create issues making it impossible to prove beyond a reasonable doubt.”

Initial Problems

The Harris County Sheriff’s Office employs a video system that comes on automatically when the emergency lights are turned on. The system also comes on automatically when the patrol unit exceeds 83 mph. Also, when the lights come on, the system records the 30 seconds immediately prior. This allows for recording of the traffic violation that leads to the stop.

Despite the fact that Deputy Aulds turned on his emergency lights and initiated the traffic stop at 02:08, the only video available began at 02:35 hrs and contained an abbreviated SFST which did not include the HGN test, and ended at 02:47. This was the first indication something was amiss.

The next glaring problem was when Deputy Aulds read C.O. the DIC-24. He appears to comply with the statutes until he asks her if she is willing to provide a specimen of her breath. When she inquires as to what happens if she doesn’t, Deputy Aulds deliberately removes the remote microphone from his belt and mutes it.[2] The video records an apparent animated discussion for the next two minutes before he escorts C.O. to the car. Thirty-seven minutes later, she provides a breath specimen.

When I watched the video with C.O., I asked her to tell me what was going on. She explained that Deputy Aulds told her that if she didn’t comply, she would be taken downtown and blood forcibly drawn from her. She was told that she was going to give a specimen tonight and she could do it the hard way or the easy way. Her consent had been coerced.

Coupling the video evidence with the coerced consent, I knew I could get the breath test suppressed. As C.O. looked fairly good on video and had extensive medical records to support any problems with the SFST, I thought I could get in an out on the case fairly quickly. Surely, the prosecutor would see what I had seen.

Boy was I wrong.

There’s Nothing Sinister Here

I didn’t see any reason to hide the ball. I told the prosecutor that he could see the deputy turn his microphone off, that the consent had been coerced, and that absent the breath test, he couldn’t make the case. The prosecutor noted my concerns on the front of the file and told me he would evaluate the case and get back with me.

JD pic 1

About to turn the microphone off (in his right hand). ‘M’ still displayed

When the prosecutor did get back with me, he told me, “I talked with the Deputy and he said he thinks the battery might have gone out on the microphone. There’s nothing sinister here.” (And the prosecutor has now become a witness to this untruthful statement.) I argued that it was an amazing coincidence that just when Deputy Aulds took the microphone off his belt as C.O. asked about refusing, the sound cut off. The prosecutor said he didn’t see that. Right then I knew I would have to set it for trial.

Microphone has been turned off (No ‘M’ displayed) as he allegedly obtains consent

Brady & Video

I filed a Brady/Kyles Motion specifically requesting the unredacted video along with any other Brady material. I also issued subpoenas for both the video custodian and the video.

Judge Smyth granted the Brady/Kyles Motion and on December 9th held a hearing on the record. Aaron Harsha, the custodian for video records from the patrol cars, was more than helpful. He did a thorough search of his database and recovered a second video. This previously hidden video was from 02:08 to 02:18 and contained the initial stop and contact between C.O. and Deputy Aulds. This video was clearly exculpatory as it showed C.O. had not committed a traffic violation in the deputy’s view, and had stopped in the middle of the road only because there was no shoulder and in response to the deputy’s emergency lights, and C.O. neither stumbled nor lost her balance when she got out of the car. (All of which contradicted the police report.)

JD pic 3

“Stopped in a moving lane of traffic” – RF indicates Rear & Front emergency lights on

Furthermore, Harsha produced an email from Deputy Aulds asking that ONLY the video file from 02:35 to 02:47 be archived. This is the portion with the abbreviated SFST and the DIC-24 being read.

While Harsha was on the stand, the following information came to light:

  • Deputies can turn remotely turn the camera on, but cannot turn it off.
  • They can mute the microphone at any time.
  • When the video is evidence in a criminal case, the deputy has to upload the video from the car to the server via a WiFi hotspot at various locations. The deputy then sends an email to “Fleet Operations” asking a specific video file be archived.
  • The camera can only be turned off from inside the car. If the camera is turned off, and then turned back on, the deputy has created two video files. For both to be archived, both must be noted in the email to Fleet Operations.
  • In this case, Deputy Aulds created two video files but only requested that one be preserved as evidence.
  • HCSO’s normal practice is to destroy all video after 90 days unless instructed the video is to be archived.
  • Deputies have the ability to review the video in the cars.
  • Cars two years old or newer should have the cameras.
  • Supervisor cars probably will not have the camera.

Harsha’s diligence led to a second Brady hearing which was held on December 15, 2011. In that hearing, Deputy Aulds took the stand. Deputy Aulds testified:

(After refreshing Auld’s memory with his email to Harsha)

Q:        And what time did you tell them to archive that?

A:        Approximately 02:35 hours.

Q:        And you didn’t tell them to archive at 02:09 did you?

A:        Apparently not.

Q:        Okay. Was that your decision to conceal that evidence?

A:        No.

Q:        Whose decision was it?

A:        It may have been an error.

Q:        How did you get 02:35?

A:        Because that was the time of – – the second video, I guess, was the SFST’s.

Q:        So you reviewed the video before learning the time, correct?

A:        I had to have, yes.

Q:        And you were aware the camera records the stop from the moment you turn the lights on, correct?

A:        Yes.

Q:        And yet, you didn’t tell the video custodian to archive from 02:09 did you?

A:        That’s correct.

Q:        And that was your decision?

A:        Yes.

Q:        And are you aware that is evidence in a criminal case?

A:        Yes.

Q:        And you deliberately concealed it?

A:        I didn’t deliberately, but it was concealed.

Later in the hearing…

Q:        How many DWI cases have you filed?

A:        I don’t have an exact amount.

Q:        Give me a guess.

A:        Ten, fifteen, somewhere in there.

Q:        How many of them have you edited the videos?

A:        I don’t have the ability to edit videos.

Q:        How many have you stopped the camera?

A:        I don’t remember.

Q:        So, you have done it in the past?

A:        I don’t remember if I have or haven’t.

Q:        Think hard. This is very important Deputy. Have you stopped the camera in the past?

A:        I’m sure I’ve stopped it.

Q:        So, this is not the first time you have concealed evidence in a criminal case, is it?

A:        I would say no.

Finally…

Q:        So, it wasn’t – – and you testified you reviewed the tape to determine what time the abbreviated SFST was conducted, correct?

A:        Yes.

Q:        And, so, you were well aware at the time you sent that email that there was a tape available from 02:08?

A:        Yes.

Q:        And are you also aware that tapes are destroyed after 90 days?

A:        Yes.

Q:        Did you make any effort to preserve that tape?

A:        No.

I was confident that since the case was fatally damaged the State would dismiss. When the judge asked if I had anything else, I looked at the Chief Prosecutor and asked, “You got a motion?” She said, “No.” Incredibly, they declined to dismiss the case and requested time to review additional records. It seemed they might be trying to determine if the video problem was systemic. (They weren’t concerned about that though as it turns out.)

We had our last hearing on January 17, 2012, and the prosecutor finally dismissed the case.

Lessons Learned

You cannot get on the preservation of evidence fast enough. We were lucky that Harsha was able to retrieve the video. It should have been destroyed on or about October 23, 2011. You also have to obtain the call slip from dispatch and the email from the video custodian and then compare them for time discrepancies. You also need to subpoena all the video from all the units at the scene. Sometimes officers will only submit the best video. We’ll call that the “Director’s Cut.” We have found exculpatory evidence in the other unit’s video on several occasions.

To the best of my knowledge, the District Attorney’s office has yet to provide any Brady notice(s) related to HCSO Deputy Anthony Aulds.

 

 

[1] Subsequent to the initial call, the Toyota stopped and the male switched drivers with the female (C.O.).

[2] What I have noticed on Harris County video (SO & Constable) is that when a deputy mutes the microphone, the ‘M’ icon which indicates the microphone is recording will continue to be displayed for another 30 seconds before disappearing.


separator