Criminal defense in Austin Texas.

Expunction vs Non-Disclosure

Posted By on September 17, 2012

The difference between an expunction and an order for non-disclosure is that an expunction is an order from a judge saying that records must be deleted or destroyed. An order of non-disclosure says that the records can’t be disseminated, except for certain law enforcement and governmental purposes.

An expunction, obviously, is what you want to get. Unfortunately – with some exceptions – you’re only eligible if your case was dismissed or never prosecuted, or you were acquitted. The statute is in Chapter 55.01 in the Texas Code of Criminal Procedure.

An order of non-disclosure, on the other hand, is for people who have successfully completed a deferred adjudication probation.

Improper Photography

Posted By on August 17, 2012

A few years ago I filed an application for a Writ of Habeas Corpus in an Improper Photography case in Williamson County. (You can see it here or here.)

Nothing ever came of it, because the prosecutor dismissed the case.

But recently recently I got a call from another lawyer who mentioned that a pro se defendant had copied my brief.

It was Collin Omondi Nyabwa. The case went to the Texas Court of Criminal Appeals, which rejected it.

Judge Keller, however, issued a dissenting opinion, in which she said, “the First Amendment protects the freedom of thought” and that “This statute is virtually unbounded in its potential application.”

It’s not often I agree with Judge Keller. I am, after all, running against her. But she’s right on this issue.

Faster Expunctions – when the case is “no longer pending”

Posted By on June 21, 2012

The new expunction statute makes some changes in the law regarding expunctions.

One of them is a shorter waiting period if the case was never filed, and is no longer pending.

Under the new law, if the case was never filed and is no longer pending, the waiting period is:

  • 6 months for a class C misdemeanor,
  • one year for class A and B misdemeanors, and
  • 3 years for felonies.

In cases where a charging instrument was filed, but later dismissed, you still have to wait for the statue of limitations to run (unfortunately).

The Right to Expunction – Texas Penal Code 55.01

Posted By on June 19, 2012

Current as of Sept. 2011.




Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c); or

(B) convicted and subsequently:

(i) pardoned for a reason other than that described by Subparagraph (ii); or

(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or

(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor, provided that:

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest, and:

(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or

(d) the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void; or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

(a-1) Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Section 21, Article 42.12.

(a-2) Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest.

(b) Except as provided by Subsection (c), a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:

(1) the person is:

(A) tried for the offense for which the person was arrested;

(B) convicted of the offense; and

(C) acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or

(2) an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.

(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

(d) A person is entitled to have any information that identifies the person, including the person’s name, address, date of birth, driver’s license number, and social security number, contained in records and files relating to the arrest of another person expunged if:

(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person’s identifying information without the consent of the person asserting the entitlement; and

(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person’s identifying information.

Objection! I want to leave the jury wondering…

Posted By on June 17, 2011

The other day Jose Baez, the lawyer for Casey Anthony, asked a witness a question: “Were you asked to do a paternity test to determine whether Lee Anthony was Caylee’s father?”

The answer to the question was, “Yes, and he wasn’t.”

The jury didn’t hear that answer, though, because prosecutor Jeff Ashton objected, and the jury was sent away. Judge later struck the question, and told the jury not to consider it. (Whatever that means; a question, after all, is not evidence.)

Had the jury heard the answer, what would they have thought? After all, Lee was not the father. The result of the test is evidence of nothing. Even if he had been, it would have been evidence that Casey had engaged in an adult incestuous relationship; not that she was a victim as a child. Finally, even if she was a victim of child abuse, that doesn’t mean she didn’t kill her daughter.

But the jury never heard it. Instead, they were left wondering.

What conclusions are they likely to draw from that?

That the answer to the question would have hurt the prosecution?
That the answer to the question was, “Yes, Lee Anthony was the father”?
That the prosecutor doesn’t want them to have certain information?
That he doesn’t trust their judgment?
That he doesn’t trust his case?
That they’re being asked to make a life and death decision without all the facts?

The prosecutor has chosen to make a lot of objections. I’m not sure that’s a good strategy for the state in a death penalty case.

Penal Code 25.11 “Continuous Violence Against The Family”

Posted By on February 28, 2011

Sec. 25.11. CONTINUOUS VIOLENCE AGAINST THE FAMILY. (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

This is an example of the trend in Texas toward the “he did something bad” approach to criminal justice.  “We don’t have to agree exactly on what he did, or when he did it, so long as everybody agrees he did something.”

Combined with the Texas Court of Criminal Appeals approach to indictments (before the presentation of the indictment, but within the statute of limitations) we’re coming ever closer to defendants being tried without knowing what they’ve supposedly done until after they’ve been convicted – and possible not even then.

In the case of “Continuous Violence” statute, for example, a defendant could be convicted without anybody ever agreeing on exactly what it is that he had done.

Texas Penal Code 33.07 makes it a crime – a felony – to impersonate someone’s “persona” on the internet.

And I’ve written about Texas Penal Code 21.15 “Improper Photography” before, which is clearly unconstitutional.

The problem is that the process for challenging these laws is so time-consuming, and the Texas appellate courts so hostile, that few defendants are willing to challenge them.  And when they do, prosecutors often back down.  That way the laws stay on the books.

Apples and Oranges – The Bar Says It’s Time To Learn About The “Billable Hour”

Posted By on February 16, 2011

There are two models when it comes to charging and collecting legal fees. There’s a civil model, in which the lawyer sits at a desk and keeps careful notes of the time he spends on a case: the phone calls and faxes, the traveling here and there, the interrogatories and depositions, and all the mountains of paperwork certain kinds of civil cases tend to generate (specifically, the ones where the litigants are deep-pocketed).

New lawyers are recruited out of law school and told they need to generate X number billable hours, where X is enough to cover not just the new lawyer’s salary, but overhead and profits for the senior partners as well.

It’s soul-deadening, but lucrative work, and work most of my former classmates aspired to do.

Clients, not surprisingly, hate it.

Companies are attacking the billable hour out of a growing frustration with rising legal costs. “Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour,” said Cisco’s general counsel, Mark Chandler. In a speech at Northwestern University’s law school last January, he called the billable hour, “the last vestige of the medieval guild system to survive into the 21st century.”


Some lawyers think it’s stupid.

The billable hour makes no sense, not even for lawyers. If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts.


Criminal defense attorneys, and other lawyers who represent people rather than corporations – and the poor rather than the rich – pretty much uniformly reject it.

The other model is the flat fee model. Under a flat fee agreement, the total amount the lawyer will be compensated is negotiated up-front. The lawyer gets no more, no less. If the case takes up more time than expected, the lawyer’s on the hook it. On the other hand, if he resolves it quickly, his pay is the same, but his hourly rate goes up.

The lawyer, in other words, assumes the risk that – at the outset – it’s often impossible to know how long the work will take. Which is appropriate, since the lawyer is in a better position than the client to take a guess.

The client, on the other hand, gets the certainty of knowing exactly what it’s going to cost, and can shop around, if he wants, for the best rate.

The State Bar of Texas, in its proposed rules changes, has decided one of these models is ethical, and the other is not.

Can you guess?

That’s right – flat fees are unethical.

You can read the gory details here. But the short version is that the Bar isn’t quite willing to outlaw flat fees outright.

Instead, they’re redefining flat fees as advance payments, which must therefore be kept in special trust accounts, which the lawyer may not touch until he earns them, by billing for his time at an hourly rate.

Sound familiar?

It’s a bit like saying you can have an apple if you like, so long as it’s orange, has orange juice inside, and is actually an orange.

Baird — In The News (Again)

Posted By on December 1, 2010

The Statesman has a (surprisingly) fair article on Judge Charlie Baird.

In Travis County, where judges release more defendants on personal recognizance, or PR, bonds than any of the five most populous counties in Texas, Baird stands apart from his peers for regularly giving the jail release to defendants charged with the most serious crimes…

The article goes on to describe several cases where inmates were released from jail, and whose cases were ultimately dismissed, or no-billed by a grand jury, or who were acquitted. These are cases where defendants were spared months – or years – of needless incarceration. (And taxpayers were spared the cost of incarcerating them.)

But it also describes cases where Baird released people from jail who used that new-found freedom to commit new crimes.

Police Chief Art Acevedo said the use of personal bond for serious offenders “is a real concern for us from a public safety standpoint.”

During an interview, Acevedo ticked off a list of cases in which his officers have felt personal bond was misused. Most of them came from Baird’s court.

One case Acevedo mentioned involved Carlos Mares, 45, who was released on personal bond by Baird after pleading guilty June 23 to delivery of a controlled substance. An affidavit accused Mares of buying three crack rocks and giving them to undercover police officers after the officers asked him to get them the drugs near Braker Lane and Interstate 35. Mares had previous convictions for a variety of charges, including attempted burglary of a building, misdemeanor assault and drug possession.

Baird said he ordered Mares to live at a rehabilitation center and called the center to make sure space was available. Two days after he was released from jail, Mares fatally stabbed Otto Wiley, 57, at the Budget Lodge hotel on Interstate 35 after the two had been drinking together, according to a police affidavit.

Of course, it’s easy to make an after-the-fact judgment that somebody shouldn’t have been released from jail.

But the article says Judge Baird signed the bond after the Mares had pleaded guilty. What that means is that Mares had likely signed a plea bargain for probation, and was waiting for sentencing. (In Travis County, there is usually a one or two week delay in felony probation cases.) He was going to get out, in other words, in a week or two anyway.

Occupational Licenses and DPS Surcharges

Posted By on December 1, 2010

Grits for Breakfast has news that at least one appeals court here in Texas has shot down DPS’s argument that people whose licenses are suspended for failure to pay surcharge are ineligible for an occupational license.

Their reasoning is pretty straight-forward: the statute says anyone whose license has been suspended for a reason other than “physical or mental disability or impairment or a conviction under Section 49.04, Penal Code” is eligible for an occupational license. Since a surcharge suspension is not one of those, it’s eligible for an occupational.

DPS had argued that such a result would defeat the purpose of the surcharge, since a suspended driver could avoid paying the surcharges altogether, by perpetually re-applying for occupational licenses.

Maybe. On the other hand, each time you apply for an occupational license you have to go in front of a judge.

The good news is that it’s at least a ray of light for people who can’t pay their surcharges because they can’t drive, and can’t drive because they can’t pay their surcharges.

Here’s the link to the court’s opinion. Barry Wood, Jr., v. Texas DPS.


Posted By on November 30, 2010

Mirriam Seddiq posted the other day about bullying.

She said, “I am decidedly against school turning my kids into giant weenies who won’t know how to stand up for themselves,” and “I was never bullied so I don’t know what it feels like. My parents always told me that if someone tried to do something to me, or said something to me, I should take matters into my own hands and they would have my back.”

I’m not sure what she means by “tried to do something to me.” “Bullying” is a vague term, so it’s impossible to say. But if it includes pushing someone down the stairs, punching someone in the back of the head, or cornering someone and threatening to break her wrist unless she gives up her lunch money, then (in the adult world) those things are called assault, extortion, and robbery.

Adults expect to be protected from those kinds of things. They don’t expect to be told to “stand up for themselves,” particularly when they’re unarmed.

Even name-calling is generally not tolerated among adults. If you have a hard-on for harassing a co-worker, you probably shouldn’t expect to keep your job very long.

Not only do adults demand a greater level of protection for themselves than what they’re willing to provide to children, the advice they give children (“stand up for yourself”) is not something they follow themselves.

Of course, if we did, our society would be a lot like the wild west; everybody would be a lot nicer, and there’d be a lot more bodies in the street.

Personally, I don’t see the logic of telling kids one thing (that they should take things into their own hands) while telling adults something else (that they should go to the authorities), and I don’t understand telling kids to handle things themselves, but then forcing them to go to school unarmed. If you’re going to force kids to go to school and refuse to protect them, the least you can do is let them bring a weapon.