STATE BAR DISCIPLINED FORMER DISTRICT ATTORNEY

Terry McEachern, the man responsible for the numerous bogus prosecutions stemming from the testimony of then Detective Tom Coleman in Tulia was recently disciplined by the State Bar of Texas. Mr. McEachern agreed to the probated suspension of his law license. According to the Texas Bar, then District Attorney McEachern failed to turn over exculpatory and impeachment evidence to defense counsel when his witness Tom Coleman "testi-lied" that he had never before been arrested or charged with a crime. In fact, Mr. Coleman had been previously charged with abuse of official capacity and theft when he worked in law enforcement in Cochran County.

In January, Mr. Coleman was convicted of perjury and given probation. Former District Attorney, was defeated in the Republican primary as he tried to run for re-election for DA of Swisher and Hale Counties in 2004. Mr. McEachern is currently in private practice defending criminal matters and touting his 23 years of prosecutorial experience.

IF A DISTRICT ATTORNEY REFUSES TO TAKE FIELD SOBRIETY TESTS AND THE BREATH TEST, WHAT SHOULD YOU DO?

As a criminal defense lawyer I am often asked if stopped for DWI in Texas, whether one should submit to a breath test or the field sobriety (drunk) tests. If there was a debate, the debate is officially over.

Hutchison and Hansford County District Attorney Clay Ballman pulled a drunk driving hit and run a few nights ago. After running away from the scene of his drunk driving accident, he was apprehended by Borger police. The DA's car was found by police abandoned on a residential road in Borger shortly after his vehicle was involved in a collision.

When given an opportunity to follow the implied consent law he has sworn to uphold, Mr. Ballman refused to give a specimen of his breath. He also refused all field sobriety tests. Folks, if the District Attorney doesn't rely on these test when it comes to his freedom, why should anyone else? That should tell you all you need to know about the reliability of these "tests."

Here's the kicker. Apparently, the local police could not clean this one up like they did before. Mr. Ballman was allegedly pulled over for DWI about a year ago and was let go. Of course, the video has been destroyed; ooops!!

Plainview Daily Herald

DISTRICT JUDGE FORCED TO STEP DOWN ON SERIES OF CASES

Criminal defense lawyer Laura Cass filed a motion to recuse State District Judge Rick Davis. Judge Davis accussed Cass of being a racist and compared her to a Nazi guard at Auschwitz while she served as an Assistant DA in his court. The Nazi comments were originally made in 2001 when Cass was a prosecutor in his court. Judge Davis was reprimanded by a 3 Judge panel appointed by the Texas Supreme Court and ordered to attend Anger Management class.

Judge Davis' anger problems apparantly relapsed recently when he launched his website wherein he again commented about the incident involving Ms. Cass. Judge Olen Underwood agreed with Cass and ordered Davis recused on a series of cases one of which is a Capital Murder case. In that case, Brazos County DA Bill Turner sought to have Judge Davis recused also. Original article

"Government Crossed the Line . . ."

The Fifth Circuit recently reversed and remanded for resentencing U.S. v. Munoz. Munoz had signed a plea agreement with the Government wherein he and the Federal Prosecutor stipulated to a total offense level 25 (71 months max) in exchange for his plea of guilty to the wire fraud, mail fraud and money laundering counts in the indictment. The Presentence Report sought the application an "abuse of trust" enhancement to his sentence and a higher calculation for the loss amount. The PSR recommended a total offense level 29. What is worse, the Federal Prosecutor urged the court to apply the "abuse of trust" enhancement, in violation of his own plea agreement. Of course, the court went along with the Government and sentenced Mr. Munoz to 90 months.

Who Abused Their Trust?

The Fifth wrote that this type of prosecutorial slight of hand "crossed the line . . ." In particular, the Court found that the Governement breached the plea agreement by advocating the "abuse of trust" enhancement.
Read the opinion

FORT WORTH COA DISMISSED MURDER PROSECUTION DUE TO PROSECUTOR MISCONDUCT DURING TRIAL

The Fort Worth Court of Appeals issued a second opinion on remand from the Texas Court of Criminal Appeals concerning alleged misconduct by a Tarrant County Assistant District Attorney. For the second time, the Fort Worth Appeals Court found the prosecutor's trial tactics to be intentional and/or reckless prosecutorial misconduct such that jeopardy attached after the trial judge declared a mistrial. In particular, the court cited the prosecutor's tactic of repeatedly commenting on the Defendant's invocation of her right to remain silent as intentional or reckless misconduct.

Although the trial Judge, Judge Sharon Wilson, found that the prosecutor's actions did not amount to reckless or intentional misconduct, the Court of Appeals found that Judge Wilson abused her discretion in this regard. The Court of Appeals dismissed the pending indictment against Ms. Lewis.

THE CASE WAS GOING BADLY FOR THE STATE

The Court of Appeals noted in it's analysis that "The case was going badly for the state." The court noted that the prosecutor had failed to call the responding or investigating officers to testify and failed to offer the Defendant's prior statement into evidence before the Defendant took the witness stand. Once Ms. Lewis testified that the complainant had twice raped her and that the weapon accidentally discharged, the prosecutor twice attempt to cross-examine her with her refusal to talk to the investigating detective instead of impeaching her with her prior statement. A link to the opinion: Texas Judiciary Online - HTML Opinion

TEXARKANA COA REVERSES CONVICTION ON CHILD PORN CASE, BAD SEARCH WARRANT (Elardo v. State)

"Reliable Source" is reliable because the source is reliabe . . . get it?

Mr. Elardo was convicted of multiple counts of child porn possession and sentenced to 20 years TDC.

The daughter-in-law of Mr. Elardo's wife tipped off police to child porn in Mr. Elardo's home. The police went to their local Justice of the Peace (not licensed to practice law) who signed their search warrant. The search warrant stated that the informant was a "reliable source", but stated no other facts in support of this contention. Justice Ross wrote that such a statement was conclusory without any "basis of knowledge" contained in the search warrant indicating the trustworthiness of this informant. The State urged the court to apply a more relaxed standard on the reliability issue because the informant was a private citizen whose only contact with the police was to witness a crime. Justice Ross declined, noting that there is nothing in the search warrant affidavit that puts this informant into the good samaritan category of tipster.


Texas Judiciary Online - HTML Opinion

"DEGARMO DOCTRINE" ON THE WAY OUT?

Are appellate rights waived if a Defendant is convicted and he or she admits guilt in punishment? In Degarmo v. State, the Texas Court of Criminal Appeals ruled that a Defendant who admitted guilt in the punishment phase of his trial could not later appeal based upon insufficient evidence.

The Corpus Chrisi Court of Appeals recently rejected the "Degarmo Doctrine." In a well reasoned opinion, Judge Garza noted that the Court of Criminal Appeals' 1985 opinion was really just dicta on the waiver issue and declined to apply this oft cited and feared rule.

I feel confident that the Texas Court of Criminal Appeals will weigh in on this issue. Read the opinion below:

Texas Judiciary Online - HTML Opinion

ABC News: Judge Sentences Spammer to Nine Years

This is the first felony prosecution resulting in conviction against a spammer for junking up your inbox. However, it doesn't sound like the judge is very confident the conviction will survive appeal.

TEXAS EXPUNCTION OF CRIMINAL RECORDS

Everyday I am asked whether someone is eligible to have their criminal records expunged in the state of Texas. The following is a dallas criminal attorney summary of the laws in the state of Texas concerning expungement and the newer practice called Petition For Non-Disclosure.

WHAT IS AN EXPUNCTION?

Upon the petition of a criminal defendant, a court can direct certain law enforcement agencies to destroy all records associated with an arrest and subsequent prosecution. Many times the court will specifically direct law enforcement agencies to destroy jail records, police reports, prosecution reports and court files. In addition, a successful expungement petitioner, can legally deny ever having been arrested for or charged with the criminal offense for which he is receiving the expunction.


WHAT IS A PETITION FOR NONDISCLOSURE?

Upon the petition of a criminal defendant, a court can direct certain law enforcement agencies to refrain from disclosing to any third party any criminal records associated with an arrest, prosecution and deferred probation. A successful petitioner can legally deny the existence of his arrest, charge and deferred probation. The order requires that any third party who buys criminal history information from Texas remove that information from their databases. If these third party vendors do not do so in accordance with the court’s order, they would be subject to civil penalties. Therefore, website such as PublicData.com would be required by law to remove criminal history information subject to the court’s nondisclosure order or face civil penalties.


Expungement of Criminal Records


Dismissed Case or Grand Jury No Bill

If a case was dismissed by the District Attorney’s office or No Billed by the Grand Jury, the first thing to do is find out what the statute of limitations is for the particular offense. The statute of limitations usually begins to run on the date of the offense. The records can be expunged upon the expiration of the applicable statute of limitations. For example, the applicable statute of limitation for any misdemeanor in Texas is two years. Therefore, if a misdemeanor assault case was dismissed more than two years ago, any record associated with that case can be expunged.

For felony offenses that were no billed by a Grand Jury (the Grand Jury refused to indict), the same rule applies. The limitations period for felonies range anywhere between five years and ten years. However, some felonies such as Murder do not carry a limitations period. Upon the expiration of the applicable limitations period, the felony case can be expunged.


Exonerated Defendants

If after a trial on the merits of any criminal offense in Texas the judge or jury returns a not guilty verdict, that Defendant is eligible to have an expunction.

Petitions For Nondisclosure of Criminal Records

Successful completion of deferred adjudication probation is the key to opening the door to a Petition For Nondisclosure (“PFN”). A petitioner is NOT eligible for a PFN is he was placed on regular probation or was placed on deferred adjudication and later found guilty by the court during probation.

What is deferred adjudication? There are two types of probation. Regular probation is a conviction in that the court actually finds the defendant guilty and suspends imposition of the jail sentence for a period of time. Under article 42.12 of the Texas Code of Criminal Procedure, a Texas Judge can alternatively place a defendant on probation for a period of time and DEFER any finding of guilt unless and until the defendant successful completes the probation. If the defendant successfully completes probation, the court will dismiss the case. It is critical that a potential petitioner obtain the judgment and sentence for their case to determine whether they received deferred adjudication probation or regular “conviction” probation.

For most misdemeanors, a defendant is eligible for their PFN immediately upon the successful completion of their deferred probation. For some misdemeanor offense such as sex-related offense (indecent exposure or public lewdness), there is a five year waiting period. During this period, the defendant cannot be convicted of or placed on probation for any offense other than a traffic ticket.

For all felonies in which the defendant successfully completed his deferred probation, the waiting period is ten years. This waiting period also operates in the same manner as described above regarding misdemeanors. That is, the successful probationer cannot have had a conviction or probation for any offense other than a traffic ticket during the ten year waiting period.

The only exception to the above is that if a defendant has previously convicted of or placed on probation for any offense which requires registration as a sex offender. In addition, if the defendant has been convicted of or placed on probation for any of the following he will never be eligible for a PFN:

• An offense with an affirmative finding of family violence.
• Violation of a Protective Order
• Stalking
• Aggravated Kidnapping
• Murder
• Capital Murder
• Manslaughter

I hope the above will help you evaluate your potential success on your Petitions of Expunction and Petitions for Non-Disclosure.

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