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Can My Client be Impeached with Prior Juvenile Adjudications?


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.


Waller County Jail Report


  The Waller County Civilian Commission report is finally out, and you can read it here:

Recommended Police and Jail Practices

We finished our review, and our report! Joined by Hon. Craig Washington, Hon. Morris Overstreet, Juan L. Guerra, Randall Kallinen, and Paul Looney, I spent countless hours trying to help the citizens of Waller County. In an epic move, Sheriff Smith invited us in and gave us unfettered access to his domain: people, places, and practices. We came and went as necessary. We interviewed whomever we wanted. We looked at whatever we chose. And, ultimately, we created 9 recommendations that have the potential to change law enforcement:


  • Better screening for mental health and illness
    • use of video (Skype or other technology) can provide immediate access to a physician
    • additionally, the same video equipment can provide immediate contact with a magistrate to set or review bond or even provide a personal recognizance bond to shorten jail stay
  • Police worn body cameras
    • develop policies to record and store all police interactions
  • Language and demeanor issues
    • address use of derogatory language
    • eliminate the stigma and treat others with dignity and respect
  • Counseling and fitness to serve for officers and jailers
    • mental health is just as important as weapon proficency
  • New jail facilities
  • Booking processes and information sharing
  • Digital reporting
  • Public information
  • Separation between jailing and policing

To be sure, every person in every agency can improve. We only hope our roadmap with some specific improvements can bring about greater respect for both the authorities and the citizens.

While it is sad that it took a suicide to bring change, better that change comes!


Right to Bear Stun Guns


Yesterday, the U.S. Supreme Court ruled a Massachusetts woman just might have a 2nd Amendment right to carry a stun gun. She was originally arrested, charged, and convicted of carrying a stun gun in violation of Massachusetts’s law. All agreed she bought and carried the stun gun for protection from her abusive ex-boyfriend. The Court, setting aside her conviction, essentially expanded the 2nd Amendment “right to bear arms” by suggesting a woman has a right to carry a stun gun, or taser, in public to defend herself.

A few states, including Massachusetts, New York, New Jersey, Rhode Island, and Hawaii, as well as several cities have passed laws that generally forbid the carrying of tasers or other similar electronic shock devices. Now, those laws are in question. Without specifically saying stun guns are specifically protected by the 2nd Amendment, the per curium opinion (an opinion in the name of the court rather than a judge or judges) held the Massachusetts court misunderstood the Supreme Court’s prior rulings on how to determine whether a particular weapon is protected or not. In short, the Supreme Court told Massachusetts to come up with a better reason for its prohibition if it wants to keep the prohibition.

The Massachusetts court made three arguments for upholding its law which forbids carrying stun guns in public.

First, Massachusetts said stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” The Supreme Court found this theory unpersuasive and against its prior rulings. Just because a particular technology was not available or common in the 1800’s, does not mean the 2nd Amendment cannot protect it. Specifically, in its prior rulings, the Supreme Court has said the 2nd Amendment extends to arms that were not in existence at the time of the founding of our Amendments. (Heller court opinion)

Next, the Massachusetts court relied on its position that stun guns were dangerous and unusual as a reason for upholding its ban. The Supreme Court again found this theory without merit. The Supreme Court said Massachusetts equated “unusual” with “in common use at the time the 2nd Amendment was enacted.” And again, the Supreme Court stated the state could not rely upon only those arms that existed at the time of the Amendment.

Finally, the Massachusetts court stated stun guns were not of the type of weapon which would be readily accessible to the militia. Massachusetts based this on the 2nd Amendment itself and its language regarding a well regulated militia being necessary to justify the right of the people to keep and bear arms. Again, the Supreme Court took exception and reminded Massachusetts that its prior rulings did not limit the 2nd Amendment protection to only those weapons used in warfare.

Finding each of Massachusetts’ reasons flawed, the Supreme Court vacated or cancelled the woman’s conviction and directed the Massachusetts court to reconsider in light of the Supreme Court’s rationale and prior rulings.

With the Supreme Court issuing a very brief opinion, Justices Alito and Thomas entered their own concurring opinion to better explain their position. After detailing the events surrounding the abusive ex-boyfriend and the state of Massachusetts failing to protect her, they take Massachusetts to task for failing Ms. Caetano yet again:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.

It is clear from these opinions that the 2nd Amendment is alive and well in the United States. The Supreme Court is unwilling to change its prior positions and looks for the states to get in line with the right to keep and bear arms.



Unforeseen Consequences


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


Affluenza Teen Corrections


Sadly, so much of what I have read in the media regarding Ethan Couch, the notorious “affluenza teen,” is just legally wrong.

Now, I am not advocating for more or less punishment or trying to guess the merits of the State’s case or the defense. But, I do know juvenile law, and many things quoted in the media do not add up.

According to a NPR report today quoting The Dallas Morning News, the teen faces 120 days to 180 days in jail in addition to other probation conditions such as and ankle monitor and curfew. It is reported that because the teen’s case is being transferred to adult probation, the new district court judge can set/add conditions of probation for the teen.

It will be up to a state district judge in adult court to determine what the terms of his probation will be, such as an ankle monitor or curfew. A judge can decide if he will spend a minimum of 120 days in jail, but the maximum that he could get is 180 days in jail, Couch’s attorney Scott Brown said.”

When a juvenile determinate sentence probation is transferred to adult probation, the case is literally transferred from the juvenile court to a district court. And while it is true that the district court sets the conditions of probation, the district court is limited to those conditions consistent with the previously set juvenile conditions. So, unless the juvenile court had already ordered an ankle monitor, the district court cannot simply add this new condition. Similarly, the district court cannot simply assign jail as a condition, even though such jail time would be required for an adult placed on probation for intoxication assault and manslaughter.

Here’s the legal reason:
Under Family Code §54.051(e), the district court exercising jurisdiction over a child transferred under §54.051(d) shall place the child on community supervision under Code of Criminal Procedure Art. 42.12 for the remainder of the child’s probationary period and under conditions consistent with those ordered by the juvenile court. None of the restrictions of CCP Art. 42.12 apply to a case transferred from juvenile court.

So, one of the requirements of CCP 42.12 (for adults placed on probation for intoxication manslaughter) is that the defendant serve a minimum of 120 days in jail with a maximum of 180 days in jail. This is where the criminal practitioner usually errs. The requirements of CCP 42.12 do not apply to the juvenile being transferred.

Whether or not the teen deserves or needs jail time or an ankle monitor or even other conditions, his own attorney should be making the judge follow the law instead of telling the media the kid will do at least 120 days.

Now, if the teen violates one or more conditions of his probation, then after a hearing, the judge would be justified in either revoking his probation and assessing prison time or modifying the conditions of his probation to include jail time or an ankle monitor among other modifications.

Sadly, throughout this case, lawyers and the media just keep getting it wrong. Next time, consult a board certified juvenile lawyer!


Since posting, an additional question has come up – so I thought I should amend and add this question and explanation.

Many have asked if Couch could be facing a “violation/modification” of his probation for the alleged violations of probation that occurred previously. In short, I believe the answer is no.

Under the juvenile code which authorizes transfer of a determinate sentence probation to adult court and probation, the receiving district court can proceed on a violation of a condition of probation under 2 circumstances:

  1. the violation occurs after transfer
  2. the violation occurred prior to transfer BUT the violation was NOT KNOWN to the State prior to the transfer.

The rationale is that if the violation was discovered while still in juvenile, then the juvenile court should address it. If the State knew of the violation but choose not to proceed on it, then the State is thereafter barred from proceeding on that violation. In other words, the State should have availed itself of the remedies in juvenile court rather than ignoring it until the juvenile reached adult court.

The Law:

Family Code 54.051 (e-2)
If a person who is placed on community supervision under this section violates a condition of that supervision or if the person violated a condition of probation ordered under Section 54.04(q) and that probation violation was not discovered by the state before the person’s 19th birthday, the district court shall dispose of the violation of community supervision or probation, as appropriate, in the same manner as if the court had originally exercised jurisdiction over the case. If the judge revokes community supervision, the judge may reduce the prison sentence to any length without regard to the minimum term imposed by Section 23(a), Article 42.12, Code of Criminal Procedure.


2015 in review


The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog.

Here’s an excerpt:

A San Francisco cable car holds 60 people. This blog was viewed about 1,500 times in 2015. If it were a cable car, it would take about 25 trips to carry that many people.

Click here to see the complete report.


Mentoring Should Be Mandatory


In the practice of law, mentoring should be mandatory. This is especially true in criminal defense where life and liberty are on the line in each and every case.

Some lawyers practicing criminal defense simply hung a shingle and opened a practice. Others are former prosecutors. In either instance, mentoring is key.

Prosecutors know how to prosecute. They get on the job training. They step in to try cases immediately. This gives them the practice in front of the court and jury. This gives them confidence in their trial skills. But, it doesn’t teach them to defend. It doesn’t necessarily teach them to preserve error. It doesn’t necessarily teach them to think outside the box. And it certainly doesn’t teach them compassion for situations and circumstances.

I was a prosecutor for over 5 years. I knew how to try a case. I knew how to present arguments. I knew how to talk to a jury. But, that doesn’t mean I knew how to defend people accused of crimes. Sure, I knew the law. Sure, I knew how to research. I even knew how to write trial briefs. But did I know how to defend? Not really.

I was fortunate though. I had many great mentors willing to help me. I was able to call upon those who had been practicing defense for years and seek their input and assistance. Great lawyers like Nicole DeBorde, Stanley Schneider, and many others helped me. I also attended (immediately) my first of many TCDLA defense CLEs.

At the time, I’m not so sure I recognized it as mentoring, but the defense lawyers I immersed myself with certainly were mentoring me. They opened my mind to a different thought process. They taught me nuances I had never considered. And, they taught me to do it all without the use of a “badge” since no one wants to help a defendant.

Last week, the Texas Indigent Defense Commission and National Legal Aid & Defender Association published their report on Indigent Defense Mentoring in Texas (below). Their report highlights the importance of mentoring and the available programs in Texas. I have been fortunate enough to participate in both of the Harris County programs as a mentor. Serving as a second-chair mentor and as a FACT mentor not only helps the younger lawyer but raises the bar for criminal defense – indigent or otherwise. I am also fortunate to assist with TCDLA’s training through speaking and course directing. Training on the “law” is one thing, but training in “defense law” is completely different.

Having been mentored and now mentoring, I can say without a doubt mentoring should be mandatory. And, luckily I was fortunate enough to have had great mentors!

You can download and read the Mentoring report here: tidc-nlada-attorney-mentoring-report

Not only do I believe mentoring should be required, but also there is an argument to be made that it is required under the State Bar Disciplinary Rules. In a recent guest blog on the State Bar Blog, Rehan Alimohammad explains:

Why should we mentor or help other attorneys? The Texas Disciplinary Rules of Professional Conduct states, in the first paragraph of the Preamble, that a lawyer has a special responsibility for justice. In the fifth paragraph of the Preamble, there is more specificity when it states, “… a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” Is there a better way to impact the quality of the entire legal profession than mentoring or giving advice to a young attorney? The Preamble does state later that use of the word “should” in the rules means the lawyer has professional discretion. So, there may be no violation of the rules for failure to mentor.


Does the Defendant Have All the Rights?


Too often, we hear citizens complain, “The defendant has all the rights; the victim has none.” know-your-rights1

This old adage could not be further from the truth. Yes, the defendant has rights: the right to a fair trial, the right to effective counsel, the right to remain silent, and the right to confront his accuser, among others. But, every citizen has these same rights when facing a criminal accusation.

I think what people usually wonder is why does a guilty person have these rights. Well, first, not all persons accused of criminal conduct are guilty. It is through the exercise of these rights that a jury can determine whether or not the accused is in fact guilty. But, when we start with the notion that the “guilty” should not have these rights, we are immediately discarding the accused’s rights. When we chip away the rights of the accused, we chip away the rights of all. Imagine for just a moment that you were innocent yet accused of criminal activity. Wouldn’t you want these rights?

Similarly, law enforcement officers often complain that they are not afforded the same rights as the criminals they arrest. This, again, could not be further from the truth. If you want the rights of a criminal, commit a crime or face criminal investigation or prosecution. If you haven’t heard them, officers usually complain during internal affairs investigations about their lack of rights. But, there is no right to employment. When an officer voluntarily seeks employment with a police agency, he is voluntarily subjecting himself to their rules and procedures and can face discipline for violations of those rules or procedures. Read more about What do police officers need to know about the 1st and 4th Amendment rights of public employees? in Val Van Brocklin’s discussion of police officers’ perceptions for their lack of rights.

Interestingly, those complaining they have no rights actually have all the same rights, they are just lucky enough to be in a position of not having to exercise them. They are not facing the power of the government attempting to take their life or liberty. They are not facing prison. They are not facing criminal conviction. But you can bet if they were, they would want all of the same rights.


The File: Whose is it?


Important information for attorneys and their clients. Clients: know the file is yours and you are entitled to it (with a possible exception for some materials). Attorneys: know what to turn over and when.

Common Attorney Questions: My client (or former client) wants a copy of his file, can I charge him copy fees to make a copy? What if he didn’t finish paying, can I hold the file until he does?

Texas Disciplinary Rule of Professional Conduct Rule 1.15: Upon termination of the attorney-client relationship, a lawyer must take steps to protect the client’s interest including surrendering papers and property to which the client is entitled.

Texas follows a rule that the “file” belongs to the client, thus it must be surrendered to the client upon request. Lawyers may make a copy for their own files, but the file must be surrendered to the client upon request. Ethics opinion 610 makes it clear that lawyers may not hold a lien on the file, thus, regardless of whether the client has fully paid his bill, the lawyer must turn over the file.

Exception: Under the Michael Morton Act, a lawyer is prohibited from providing copies of the discovery provided by the state to the defendant (or others). The rule specifically states that a lawyer may allow a defendant (or certain others) to view the material but may not allow that person to have copies. Before allowing a defendant to view the material, a lawyer must redact identifying information. Because this material is excepted from disclosure to the client, a lawyer must keep this information separate so that it is not provided to the client in the event the client requests his file.

New legislation (HB 3791) clarifies the recent open question on whether a lawyer can turn over a DWI video to his client. Some lawyers believed the video could not be turned over to the client under the MMA because it was discovery received from the state under the MMA. Some believed it could be. The legislator cleared up the inquiry by amending CCP 2.139 to state specifically that DWI videos are available to the person stopped or arrested on suspicion of intoxication offenses. The DWI video includes video of the (1) stop, (2) arrest, (3) conduct of the person stopped during interaction with officer including SFSTs, or (4) procedure in which a person’s breath or blood is taken.

CAUTION FOR LAWYERS: Be careful with requests from subsequent attorneys for the client’s file. Only the client may request transfer of the file to the new counsel. In an interesting case, appellate/habeas counsel contacted former counsel for the client’s file. The former counsel refused to provide the file absent the client’s consent. The trial court then ordered former counsel to turn over the client’s file, over the client’s objection. In In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013), the Court of Criminal Appeals issued a mandamus to prohibit the trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file.


Just Because You Can, Doesn’t Mean You Should


Sure, a prosecutor can choose to prosecute a case, but that doesn’t always mean he or she should.

Trace Cocaine Cases

Years ago, then Harris County District Attorney Pat Lykos made the choice to decline prosecution of trace amounts of cocaine. This didn’t mean she approved or condoned cocaine possession. It didn’t mean cocaine cases were not prosecuted. It simply meant she chose to use her limited resources for more serious cases, cases involving more than just residue. Under her watch, trace amounts of cocaine meant residue left on a baggie or pipe; something that was may not even be seen, and certainly was not capable of being used, but could be tested for or seen through a microscope. While she was widely criticized by her opponent in the next election cycle for her position, it made sense and it freed up judicial resources and taxpayer money to focus on more serious crimes.

Since her defeat and the return of the prosecution of trace cases, we saw a large increase in these cases which necessitated the creation of a separate “state jail court” as we called it. This extra court had to be staffed and operated seven days a week just to handle these cases. This court had to be funded by the tax dollar. In this court, cases would languish on the docket, with defendants mostly sitting in jail unable to afford a bond. Defendants in this court were rarely offered treatment and simply moved on from the county jail to the state jail, eventually to return to Harris County and begin the cycle again.

Perhaps it is time once again to consider whether or not these cases should be prosecuted.

Interestingly, with that extra court tied up on such relatively small cases, we saw other courts becoming backlogged as well. This October, the state jail court was repurposed and became what we call “impact court.” Impact court is a trial court meant to ease the backlog of felony cases, many of which are sexual assaults, robberies, and murders. Certainly seems we should have focused resources on these cases all along and not worried so much about trace cases.

Small Marijuana Cases

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, told the Texas Tribune in June, misdemeanor courts are now a mess and are backlogged with more than 10,000 marijuana cases. To ease this logjam, the District Attorney created its First Change Intervention Program aimed at removing non-violent low-level marijuana cases from the courts.

Not only was this program designed to divert cases from the court, it also sought to easy jail overcrowding by diverting these non-violent citizens from the local jail.

The program, in terms of a participant’s completion has been largely successful; however, in terms of diversion the program has been less than stellar. Diverting only about 19% of the program’s participants from the jail and the courthouse, the program has made little impact on these valuable resources.

Perhaps it is time to rethink prosecution of these cases. The District Attorney could easily force a diversion in almost all these cases but chooses not to.

Assault / Domestic Disturbance

Here, you will notice i didn’t use the term domestic violence. Certainly, true violence whether domestic or otherwise, should not be tolerated. But here, I’m talking about disturbances that are routinely prosecuted despite the participants’ desire.

All too often we see cases where the police are called to a disturbance. Emotions are usually high as the police arrive and seek to determine what happened. Perhaps the two participants in the disturbance were upset. Perhaps they were arguing. Perhaps things got out of hand and one participant pushed the other back. Perhaps that push, meant to place distance between the two, resulted in one sustaining a red mark to her arm. That red mark is most often referred to as an injury and the other person is arrested, taken to jail, and prosecuted. Perhaps one party stretched or embellished in a moment of anger.

Now, should the “injured” party settle down and notify the prosecutor that things just got out of hand and she really doesn’t want her companion to be prosecuted, that case is immediately sent to the “family criminal law division” for follow-up and continued prosecution. In effect, the injured party is given no say in whether or not the prosecution goes forward.

Many of these incidents involve no real injury and no repeated violence. Yet, they are prosecuted.

Again, not that prosecutions of abuse should be ignored, but many of these instances do not amount to abuse. They are single instances of heated arguments.

Prosecutions, while great for business, must be taken with care and insight into the expenditure of valuable resources. Prosecution: just because you can, doesn’t mean you should.