austindefender

Criminal defense in Austin Texas.

Top Ten DWI Attorneys

Posted By on March 15, 2017

DWI is the most common single category of offense in Travis County, and is also one of the most difficult kind of misdemeanors criminal defense attorneys handle. There are a number of reasons for that, but one is that prosecutors so often have so much evidence by the time the case goes to court – including video, statements by the defendant, and breath and blood tests.

I was curious, therefore, which attorneys have the best records when it comes to DWI. The range was enormous.

Here are the top ten:

Rank # Dismissed # of cases % dismissed
1 24 33 72.73
2 62 101 61.39
3 14 23 60.87
4 17 28 60.71
5 16 27 59.26
6 90 159 56.60
7 18 33 54.55
8 27 50 54.00
9 20 39 51.28
10 14 28 50.00

Those are some pretty stellar numbers. The median for all attorneys was 25%.

The difference between the top ten and bottom ten was large.

Here are the numbers for the bottom 10:

Rank # Dismissed # of cases % Dismissed
174 2 45 4.44
175 2 46 4.35
177 1 24 4.17
178 1 25 4.00
179 1 25 4.00
180 1 40 2.50
181 2 90 2.22
182 1 46 2.17
183 1 47 2.13
184 2 96 2.08

When there’s a range from 2% to almost 73%, that’s a big difference.

Court-Appointed Defense Attorneys

Posted By on March 14, 2017

One of the things I wanted to look at was the difference between court-appointed attorneys, and those who are not on the court-appointment list.

I anticipated the court-appointed lawyers would have worse outcomes: it is a simple fact that being out of jail is a huge advantage in our court system. And court-appointed attorneys mostly represent folks who are in jail.

And I was right, though by a smaller margin than I thought.

For the 152 attorneys not on the court-appointment list, the dismissal rate was 31%.

For the 96 on the list, it was 21%

A significant difference, but still not as much as I thought – a lot of hard-working court-appointed attorneys out there.

What was most surprising is the disparity between those with the highest dismissal rates, and those with the lowest: 62% was the highest, and 5% was the lowest. It seems that picking the right lawyer is important.

On a slightly different note, of the highest-ranking defense attorneys, few did much advertising, and none had a lot of clients.

One court-appointed attorney made it into the top 10.

Popular vs. Best Attorneys – Travis County

Posted By on March 13, 2017

I was curious how the most popular attorneys – those with the most clients – performed compared to the best attorneys – those with the most dismissals – and the average (median).
The best attorneys were very good. The median dismissal rate for the best 10 attorneys was 51%. That compares with a median for all attorneys of 26%. So they were almost twice as likely to get a case dismissed, compared to the average.
The most popular attorneys, on the other hand, were not so good. Their dismissal rate was 19.6% – they were less likely to get a case dismissed than average.
The answer, I think, lies in the very high caseloads the most popular attorneys carried. The average was 687. When you consider the best attorneys had 140 cases resolved since 2014, it seems that too many cases may be a significant handicap when it comes to criminal defense.

Charts below.

Best Attorneys:

Rank Dismissals Total Cases % Dismissed
1 161 261 61.69
2 80 147 54.42
3 64 119 53.78
4 59 112 52.68
5 68 133 51.13
6 86 169 50.89
7 192 380 50.53
8 56 112 50.00
9 52 106 49.06
10 87 178 48.88
140 51.01

Most Popular:

Rank Dismissals Total Cases % Dismissed
1 428 1150 37.22
2 159 1088 14.61
3 156 888 17.57
4 207 733 28.24
5 175 693 25.25
6 110 682 16.13
7 90 672 13.39
8 284 654 43.43
9 127 645 19.69
10 114 585 19.49
687.5 19.59

Assault Family-Violence

Posted By on March 12, 2017

I did some number crunching on Assaults – Family Violence to see what the results would be. I rarely plead anyone to Assault -Family Violence, so I was curious what the overall conviction rate would be.

The overall rate of convictions and probations for family violence is low: 16.5%.

Excluding active cases – which is only fair, since those cases have not yet been to court – the number is higher: 22.1%. I was a little surprised it was as high as it is. I suspect that some of those cases were people who couldn’t make bail, and plead to get out of jail.

Men are roughly twice as likely to be arrested for family violence as women.

But, on the other hand, women are about twice as likely to have their cases dismissed.

Men are about four times as likely to get a final disposition (jail time), and about three times as likely to be sentenced to either probation or jail.

Here are the raw numbers:

Male Female Total % Male % Female
All Cases 4655 2259 6914 67.3% 32.7%
 Active  1227  509  1736  26.4%  29.3%
Dismissed 839 837 1676 18.0% 37.1%
Final Disp. 764 95 859 16.4% 4.2%
Not Guilty 8 2 10 0.2% 2.1%
Convictions & Probations 1006 138 1144 21.6% 6.1%
Pros. Rejected 56 86 142 1.2% 3.8%

 

Driving While Intoxicated – Travis County Conviction Rate

Posted By on March 12, 2017

For DWI’s since 2014, the results were a little different.

There were a total 12,190 of them. (DWI is the single biggest offense category in Austin.)

The four biggest categories were “Active”, “Final Disposition”, “Dismissed” and “Probation”. Those four categories accounted for 96% of the cases.

“Active” is people with pending cases. (The large number is a testament to how backlogged the Travis County courts are.) Final Disposition is people who got jail sentences (or SWAP). A dismissal means the case was dropped – no sentence was imposed. Probation includes people who are on probation, or have finished it.

Total 12190
Active 4332 36%
Final 3101 25%
Dism 2625 22%
Prob 1601 13%
Total 96%
Other 4%

 

If you take out the active cases, the state’s success rate is pretty good. They got probation or jail in 4702 cases, while dismissing only 2625. That’s 64% conviction vs. 34% dismissal rate – again, backing out he active cases.

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.

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS

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.