CRIME NEWS: Will DNA Tests Free Johnnie Lindsey on Friday?

Let's hope Friday is a very, very good day for Johnnie Earl Lindsey.

That's because on Friday morning in the Crowley Courts Building, a judge may well order Mr. Lindsey's release from jail after Johnnie Lindsey's served almost 26 years for a crime he didn't commit.

That's right: they got the wrong guy back in 1981, for the rape of a 28-year-old woman near White Rock Lake. The victim identified Johnnie Lindsey as her rapist based upon six photos; only two photos showed men without shirts on (her rapist was shirtless) and Johnnie was one of those two.

Just one more example of how faulty eyewitness testimony can be.

No one listened to Mr. Lindsey when he argued that it couldn't have been him: he was at work at the time (he pressed pants and things at a commercial laundry and cleaners). Until now.

Thanks to The Innocence Project, Johnnie Lindsey's DNA has been compared to the DNA evidence from the crime scene. DNA has scientifically ruled out Mr. Lindsey as the rapist.

According to the Innocence Project, Johnnie Lindsey will be the 19th man in Dallas County to be cleared of a crime, after being convicted, since 2001.

The Integrity of Johnnie Lindsey

Mr. Lindsey is now 56 years old, setting in a jail cell assumedly relieved that the innocence he's been proclaiming though two jury trials and countless parole hearings has been recognized.

And why wasn't he released on parole long ago? Because of the severity of the crime, and the fact that he would not admit that he was guilty of raping anyone.

Johnnie Lindsay sat in jail since rather than confess to something that he didn't do, in order to gain his freedom. I think that's called integrity in some circles. Imagine that.

Think of it. Think of how long this man held onto his innocence, despite the sacrifice. To give you an idea, back in 1981:

1. Ronald Reagan was President;
2. Dallas was the most popular TV show;
3. "Bette Davis Eyes" by Kim Carnes won a Grammy as the Record of the Year (that's right, record);
4. Chariots of Fire won the Oscar for Best Picture, and Henry Fonda and Katherine Hepburn won Oscars for their acting in On Golden Pond; and
5. Marcus Allen won the Heisman trophy and the Oakland Raiders won the Super Bowl.

Seems cruel and unusual that Mr. Lindsey has to wait until Friday, doesn't it? And, to Mr. Lindsey: good luck to you, sir, and God Bless.

Sources:

DallasMorningNews
(http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/091608dnmetlindsey.173e456.html)

The Innocence Project
(http://www.innocenceproject.org/)

CRIME NEWS: Can Casey Anthony Get A Fair Trial and Why We Should Care

Casey Anthony may have never set foot in our fair State of Texas, but what she's experiencing over in Orlando, Florida, is coming into our homes on a daily basis.

And that's good -- because we all need to be watching to see how Casey Anthony's rights are being respected over there in Florida. Because her loss of rights today does impact upon your rights, as well.

Your rights are only as safe as hers are.

What's This Case About?

The bottom line to the case is Casey Anthony's 3 year old daughter, Caylee, has been missing since June and mom Casey didn't report her missing until 31 days later - and then, she tagged onto a 911 call made by her mother, and the little girl's grandmother, Cindy Anthony.

Since that 911 call, Casey Anthony has been charged with child neglect, filing a false statement, and check fraud. She's out on bond in excess of $500,000 and is currently on house arrest in her parents' home, spending her days in the law offices of her attorney, Jose Baez.

What's Her Attorney Been Doing?

1. This past Thursday, Baez filed a motion seeking a court order to stop the prosecution's testing and handling of forensic evidence until the Judge can set rules on how this testing should occur. Baez is arguing that forensic testing can destroy the forensic samples, and he wants the Judge to oversee how this key evidence is tested, as well as what methods are used. Baez also wants a member of his defense team to observe the testing.

Why is Baez requesting all this -- even before his client is charged with anything BASED upon this evidence? He's urging that this court oversight is needed to protect Anthony's right to a fair trial.

Of course, pundits are critical of Baez's motion (just listen over at Nancy Grace) because this type of motion usually isn't filed until the client has been charged with something correlated to the forensic testing. The soil and carpet samples from her car, much less the air (yes, air) from the car's trunk, presumably connect to some type of murder charge - not the current charges that Anthony is facing.

Still, given what Baez has already seen, his motion isn't a surprise ....

2. Baez filed a Motion to Decrease the Half-Million Dollar Bail earlier, and not only was that denied by the trial court but the appellate courts upheld the bond amount. Remember, excessive bail is prohibited by the U.S. Constitution and Casey Anthony is only charged with two things in connection with this bond amount: child neglect and giving false information to the police. This is an extremely high bond for these charges.

3. Baez filed a Motion to suppress audio and video recordings of Casey Anthony communicating with family and friends while at the jail, arguing that releasing this to the press would inhibit his client's ability to get a fair trial. The Motion was denied.

What's At Stake Here?

At the time of this post, not only have the jailhouse communications been released to the media, but there's also 400 pages from the police investigation files (incident reports, etc.) readily available on the web, along with audios of interviews between the detectives and Casey Anthony. Additional charges have been made against her -- more economic charges, for writing bad checks, etc.

At the Anthony home, protesters yell and carry handwritten signs ("BabyKiller") 24/7, and one "blogger" was filmed taking away the Anthonys' trash and later combing through it for "evidence."

The neighbors' lives, as well as the Anthony family's, have to deal with this chaos now -- apparently, the police come only to break up fist fights.

Casey's parents, Cindy and George Anthony, have hired their own criminal defense attorney. Someone has offered Casey over $1,000,000 for her story and someone else has put up a reward of $250,000 for information regarding the whereabouts of little Caylee.

Why This Should Worry You

Every night, CNN devotes two hours to this story since it's all that Nancy Grace follows anymore. FoxNews usually has an hour, unless Greta Von Susteren is covering something about the presidential race.

On the web, an unbelievable amount of the police investigation files are available for anyone to download and read. Countless blogs and forums exist to chat and discuss the latest information as well as the latest rumors.

And what is the common theme here? Judgment. Casey Anthony is being judged on whether or not she did something to her child long before she is ever charged with a crime or made to face a jury.

She has a right to be presumed innocent until proven guilty. You have that right, too.

She has a right to be tried fairly, with an unbiased jury who have not made up their minds in advance. You have that right, too.

It is not a question of whether or not Casey Anthony harmed her daughter. It is a question of whether or not the system is being played.

Disrespecting our system of justice is something that should make us all very, very worried.

Good luck, Jose.

Sources:

OrlandoSentinel.Com (Complete Coverage of Missing Caylee Marie Anthony)
(http://www.orlandosentinel.com/services/newspaper/printedition/monday/orl-caylee-anthony-missing-stories,0,5047466.storygallery)

NancyGrace/CNN's Find Caylee Blog
(http://www.cnn.com/2008/CRIME/09/08/NGfindcayleeblog/)

Investigation Discovery -- Full Coverage of the Caylee Anthony Case
(http://investigation.discovery.com/blogs/criminal-report/casey_anthony_full_coverage/caylee_anthony.html)

JUDGE WATCH: Secret Love Affair Between Trial Judge and DA Stops Execution?

Charles Dean Hood was scheduled to be executed today for the 1989 killings of Tracie Wallace and Ronald Williamson. Hood's been staring the death penalty in the face for almost twenty years.

Yesterday, things changed.

The highest criminal court in the state, the Court of Criminal Appeals in Austin, issued a stay of execution on Execution Eve, purportedly to consider arguments made in his criminal appeal that the jury got bad instructions on the law, way back when.

However, many are thinking the real reason that Charles Dean Hood lives to fight another day is because of a civil suit filed on his behalf, which enabled his attorneys to take the sworn testimony of the judge who presided over his trial as well as the prosecutor.

The Secret Love Affair

What's the big deal about these depositions? Well, it appears that courthouse gossip was true.

Former Collin County Judge Verla Sue Holland and Collin County District Attorney Thomas O'Connell reportedly admitted to being romantically involved during the time period when the Hood case was tried. It was a secret they'd kept all these years.

Here's a part of the letter that Gregory Wiercloch, Hood's attorney, wrote to Governor Rick Perry:

“Judge Holland and Mr. O’Connell confirmed that they kept the relationship secret .... She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney.... Similarly, Mr. O’Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland.”

Last week, the Texas Attorney General asked for a reprieve, so the Secret Love Affair rumors could be investigated.

Defense Attorney Nightmare

Talk about a criminal defense attorney's nightmare! You're trying a murder case with the possibility of death row, and the Judge and the prosecutor are an item. It's the stuff of a Law & Order episode.

The Brave Soul

How did all this happen? It appears that an attorney who worked as an assistant DA in Collin County during the time of the Hood trial had the courage and integrity to step forward and provide Hood's civil lawyers with a sworn affidavit, swearing that it was common knowledge at the time that there was a rumored romance between the trial judge and the prosecutor in the case.

This affidavit gave Hood's civil attorneys the legal ammo they needed to move the court for these depositions to be taken, in the face of arguments against them.

It's true that Judge Brewer, presiding over the civil case, then had the fortitude to allow the depositions to proceed - with a gag order. However, it took a lot of spunk for that attorney to provide that affidavit for all the world to see -- including fellow attorneys who may decide to ostracize this whistleblower.

Editorials are being written about giving credit to Judge Brewer -- it would be nice to see some hat-tipping to this brave attorney, too.

The Underlying Crime

What was Hood's crime? Hood (now 39) was found guilty and sentenced to death for shooting to death Ron Williamson, his boss. and Williamson's girlfriend, Tracie Wallace, along with stealing Williamson's car and credit cards, along with some jewelry. Hood was arrested in Indiana, and returned to Texas for trial. Hood still maintains his innocence.

Sources:
Reuters.Com (http://www.reuters.com/article/newsOne/idUSN0934589420080910)
New York Times (http://www.nytimes.com/2008/09/10/us/10texas.html?_r=1&scp=1&sq=Charles%20Dean%20Hood&st=cse&oref=slogin)
DallasMorningNews.Com (http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/DN-hood_10edi.ART.State.Edition1.26ae2e0.html)

CRIME NEWS: Texas' Criminal History Records are Really, Really Inaccurate

You watch CSI, or NCIS, or any one of a number of crime shows on TV, and there they are: huge databases of information on folk who have been arrested for crimes in all sorts of jurisdictions.

Federal, state, city,military - heck, they'll even pull up someone who's been busted overseas somewhere. And, it's so fast, too: the screen zips thru file after file, and suddenly stops on an exact match (who's usually the guest star for that episode).

Well, those in the know have long recognized that this isn't reality -- but never more so than this past month, when the Texas Department of Public Safety publicly admitted that its criminal history records database is far from complete. According to Angie Klein, who manages this database, it's only got 69% of the state's actual criminal records.

If this were a report card, DPS would be getting a D+.

What's going on? Counties aren't reporting, for a variety of reasons. And, of course, prosecutors are really upset by this. They may not have information regarding past criminal histories before offering up a nice plea deal.

Bottom line, what does this mean? There's a 31% chance that a criminal record isn't going to be in the system.

Think about it. The good news: you're pulled over on suspicion of driving drunk and there's a 31% chance the cop's not going to know about a past DWI on your record. Or, you're arrested for burglary: there's a 31% chance that a past conviction for burglary back in Houston isn't going to pop up on your record.

Of course, you and your criminal defense attorney need to make sure that any acquittals or dismissals of your case are recorded in the system. You don't want those old criminal charges to pop up when you are applying for a lease, or a job, or buying a gun, or adopting a child ....

Source: DallasNews.com, August 22, 2008

JAIL WATCH: At Least Stanley Lived to Tell The Story

Over at Grits for Breakfast, Scott Henson gives a rundown on the recent $900,000 verdict against the Dallas Jail -- where the federal jury found former jail inmate Stanley Shepherd's constitutional rights had indeed been violated.

How? Stanley was found to have been wrongfully denied basic medical care during his 2003 stay in Dallas County's Lew Sterrett Justice Center. (Stanley was being held on some burglary and drug charges.) He wasn't given his high blood pressure medicine, and as a result, he's suffered permanent disabilities.

Henson's also got a nice wrap-up about the state of our local jail -- including listing several analogous tragedies, which bring to mind that Stanley did fare better than some other folk: there are those who have died in that jail from not getting their meds.


Sources:
Grits for Breakfast, August 27, 2008 (http://gritsforbreakfast.blogspot.com/2008/08/jury-awards-fat-verdict-against-dallas.html)

COP WATCH: Dallas Cop Allegedly Robs Sam's Club, Stops Himself

This story is really going to make you feel safe.

About three weeks ago, a Dallas Police Department officer thwarted an armed robber who was trying to hold up a local Sam's Club.

Officer Al Coleman, who was off-duty as a Dallas cop and working his second job as a security officer at the Sam's Club on West Wheatland Road, told NBC-5 that " ' he [the robber] just told me the last part of his plan and I didn't agree with it. Says he was gonna kill me.'"

According to Officer Coleman, this evildoing Masked Man rushed Sam's and took Coleman hostage - yes, hostage! - whereupon Coleman fought back. Guns were drawn. Guns!! Shots were fired. Shots!! Coleman was hit in the chest ... luckily, he had on a bullet-proof vest.

The robbery was prevented and Officer Coleman, what a hero, right?

Well, no.

Dallas Police Department detectives now report that all the evidence, which includes store surveillance tape, shows that Coleman is lying.

Turns out that Coleman was in on the whole thing with the getaway driver parked out front in Coleman's car while their pal, the Masked Man, came into the store. They're all three facing robbery charges today.

Who really stopped the robbery? The Sam's employees -- who barricaded the door, preventing Coleman and the Masked Man from gaining access to the vault.

Sources:
WISTV (www.wistv.com)
WFAA (www.wfaa.com)

This One's On Me!!!

Here's some international coverage from the Economist concerning article 59 abuses across Texas. As many of you know, article 59 of the Texas Code of Criminal Procedure is the way our trusted District Attorneys go about seizing millions of dollars in "drug dealer" assets. You would think that this money then goes to help out children or crime prevention. Well sometimes it does and sometimes it can pay for a pretty awesome margarita machine. Montgomery County District Attorney Mike McDougal used article 59 seizure money to acquire a margarita machine for the county fair. Maybe the first toast at the party was to all of the defendants that could make the party possible. This one's on me!

Law Enforcement: This Week's Corrupt Cops Stories

Drug War News

Here is a good summary of the latest in embarassing law enforcement foul ups in pursuit of America's War on Drugs.

Collin County Justice

Questionable Collin County Indictments Get New Life

Collin County prosecutor Chris Milner has had some mixed results. However, the Texas Court of Criminal Appeals recently breathed new life into Mr. Milner's case against Dallas Attorney Jim Vasilas.

As far as the Court of Criminal Appeals is concerned, a lawyer that makes a mistake in a civil Petition he filed can be charged with Felony Tampering With a Governmental Record. After both a Collin County District Judge and the Dallas Court of Appeals logically reasoned that a Petition generated by and filed by a lawyer could not be a "governmental record", the high court somehow found that it could be part of the definition set by the legislature. Unless the Dallas Court of Appeals rules that the Rule 11 provisions of the Texas Rules of Civil Procedure is in pari materia to this type of obtuse allegation, the Court of Crimial Appeals cleared the way to prosecuting all civil and criminal lawyers for making mistakes in their Petitions or other records typically filed by lawyers in Texas.

Dallas County Justice

This article originally published by the Dallas Morning News doesn't illustrate the difference between black and white in the criminal justice system. Rather, this article clearly illustrates the difference between court appointed representation versus retained representation.

PROSECUTOR COMMENTS ON DEFENDANT'S RIGHT TO REMAIN SILENT, RECKLESS OR INTENTIONAL??

In a captial murder trial the State prosecutor commented on the Defendant 5th Amendment rights. The Judge declared a mistrial. Federal Double Jeopardy law says no new trial for the State if it can be shown that the prosecutor's conduct was reckless or intentional. Tim Cole, the district attorney for Montague, Clay and Archer counties argued that the prosecutor's comments were due to inexperience and were not intentional or reckless. The Fort Worth Court of Appeals went with that explanation.

Does it make sense that a prosecutor trying a multiple count captial murder case isn't experienced enough to understand how the 5th Amendment works?

Harris County District Attorney sees no pattern of prosecutor misconduct. What do you think?


Dallas Morning News News for Dallas, Texas Texas/Southwest

All Headline News - DEA Busts Ring That Used Virgin Mary Tombstones To Smuggle Drugs - April 10, 2006

Did a public intoxication raid go too far?
10:34 PM CDT on Wednesday, April 5, 2006
By BYRON HARRIS / WFAA-TV
Also Online
Byron Harris reports
More stories on this subject
The Texas Alcoholic Beverage Commission was accused of being heavy handed during Dallas raids last month, but charges of over-reaching don't begin there.
An operation at Cedar Creek Lake last summer still has some people fuming. They said TABC officers threw people in jail based simply on their opinion. Some also said the TABC broke its own rules in the process.
The incident occurred on a Friday night last July in the small town of Seven Points when TABC agents, fire marshals and local police cracked a mellow mood with a public intoxication raid at Rita's Club, Walker's Landing, the First and Last and Cedar Isle.
Over several hours, in a sweep of nearly every bar and private club in Gun Barrel City and Seven Points, TABC officers and local police arrested 25 people.
"It was something like you would see on 'Cops,'" said club owner Nita Walker. "It was like they had committed several murders in the bar. It was like a TAC force busting through."
The sting had two parts. The TABC often sends an undercover officer into a bar 15 minutes to an hour before enforcement officers arrive. The undercover officer observes the patrons for signs of intoxication like red eyes, slurred speech and declining motor skills. Whether a person is or is not intoxicated is based on the officer's judgment.
Although TABC officers receive some classroom training on how to recognize public intoxication at headquarters in Austin, the agency has no training film on the subject.
"In the 20 years that I've been in law enforcement, public intoxication has been subjective," said Sonja Pendergast. "It has been up to the officer."
Many felt the July raid was too aggressive and unjust.
"To come in and take somebody outright because they had two beers [or] three beers, I feel like that's an injustice," Eldon Campbell said.
But precisely what happened at Cedar Creek is in dispute.
Some of those charged said the TABC officer who arrested them had no visible badge and did not identify himself, but he said he did.
Some of those arrested said they were not given a field sobriety test of motor skills, while officers said tests were administered.
Those arrested also said they were not given a breathalyzer exam; Officers said a breathalyzer was offered, but was refused.
But it turns out, blood alcohol level is irrelevant in public intoxication cases, because public intoxication is based solely on the judgment of the officer.
While motor vehicle officers routinely videotape DWI arrests, TABC officers do not, and many don't even have cameras.
Public intoxication is a Class C misdemeanor, which is a crime too small for most district attorneys to prosecute.
In 2004, TABC made 2,055 public intoxication arrests and charged 113 bartenders for overserving patrons.
The agency does not have complete statistics for 2005 because it said it lost the numbers.
Last year, the TABC received a budget increase. It hired 60 new officers and increased its enforcement of public intoxication.
TABC officers said most of the people they arrest are so intoxicated there is little doubt they're endangering themselves. The officers said they are saving lives.
Cedar Creek bar owners said business is down 25 percent since last year because customers are afraid to come in.

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.

Attorney Client Relationship
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