austindefender

Criminal defense in Austin Texas.

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.

Bullying

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.

More Homeland Security

Posted By on November 17, 2010

This was worth watching:

And this was worth reading:

The Things He Carried

Napolitano to travelers: “Don’t fly.”

Posted By on November 16, 2010

That was the Homeland Security Secretary’s response to complaints about TSA’s new pat-down procedure “Resolution”, “which requires a tactile examination of passengers’ genitals.”

Her remarks came after John Tyner’s now-famous “Don’t touch my junk” video, in which he recorded his face-off with the TSA.

If they don’t  like it, they could “travel by some other means,”  she said.

I wonder what the airlines will have to say about that.

Anyway, what’s sad about the whole thing is that despite America’s obsession with terrorists and airplanes, it’s still practically impossible to die from a terrorist.  You’re about a million billion times more likely to die from an ordinary car accident, and despite all endless hours wasted at airport security lines, terrorists are not actually obligated to attack only airplanes.

While I’m personally not all that worried about “my junk,” I do hate feeling like I live in a police state.  I tried to avoid flying before; I’ll try harder now.

Richard Winfrey aka “Who Needs Evidence?”

Posted By on September 27, 2010

Richard Lynn Winfrey v. The State of Texas is one of those cases where you think, “How could that happen?”

Richard was convicted of a murder in 2007, and sentenced to 75 years in prison.  There was lots of evidence at the crime scene: DNA, hair, a bloody fingerprint, and a shoe print – none of which matched the defendant.  Instead, at trial, the prosecution relied on a “dog scent line-up,” in which a deputy walked a bloodhound by a line up of paint cans, and the dog “alerted” to the right one – the one containing a smell obtained from the defendant.

I immediately thought of “Clever Hans” – the horse who was thought to be able to add, subtract, multiply and divide – and do other mathematical puzzles – until finally somebody figured out he could only do the math when his handler knew the answer.  (The horse was picking up on unconscious cues of people around him – not doing actual math.)

Despite the paucity of evidence, the jury convicted, and Winfrey was sent to prison – and would be there yet, but for the intervention of a lawyer who was able to – amazingly – convince the Court of Criminal Appeals to overturn the conviction.

Grits for Breakfast, as is so often the case, has an excellent summary.

According to Grits, dog scents are right only about 50% of the time.  “Why not flip a coin?” he asks.

Unfortunately, Winfrey’s then-sixteen year old daughter still sits in prison, convicted for the same crime, on the basis of the same evidence.  Once can only hope her conviction is overturned soon.

Orders of Nondisclosure

Posted By on September 20, 2010

Orders of Nondisclosure are governed by Texas Government Code Section 411.081.

An Order of Nondisclosure is an order from a judge, telling DPS (Texas Department of Public Safety) to seal information related to an offense.  It’s a way to clear the slate, so to speak – if you’re eligible.

Are You Eligible?

First off, you’re only eligible if you got probation, and the kind of probation you got was “deferred adjudication.”  What does deferred adjudication mean?

It means the judge in your case “deferred” – or put off – finding you guilty, even though you said you were guilty (or said, “no contest.”)   If you got regular probation – meaning the judge pronounced you “guilty,” you’re not eligible.

You have to have completed your probation successfully.  If you got revoked, you’re not eligible.

There are also waiting periods that apply.  For most misdemeanors, you’re eligible as soon as your probation is complete.  For others, including Assault, Cruelty to Animals and Unlawful Restraint, the wait is 2 years.

For felonies, the wait is ordinarily 5 years.

There are some kinds of cases where you are never eligible for an Order of Nondisclosure.  These include injury to a child, violation of protective order, family violence, and sex offenses.

It is true that a deferred adjudication is not a conviction.  The fact that you were on deferred adjudication, however, is public information, unless or until you get it sealed.

To see your DPS record, go here.

Copying Is Not Theft

Posted By on August 18, 2010

I came across this the other day –  it does a much better job explaining the difference than I ever could.

What Lawyers Do

Posted By on August 16, 2010

What Defense Lawyers Do:

By requiring the state to prove its case and helping defendants understand their options in the criminal justice system, defense attorneys can help ensure that the state doesn’t send innocent people to jail and that individuals who commit criminal offenses receive appropriate sentences that punish without leading to unnecessary prison and jail overcrowding.

–The Texas Fair Defense Project.

“Helping people understand their options” is fair enough.  The bit about ensuring “innocent” people don’t go to jail, though, is not quite right.

A defense lawyer’s job, is to keep you from going to jail, whether you did it or not.  It’s a bit like being a plumber, or a doctor.  The goal is to mitigate the damages, not to assign blame.

The part about “appropriate sentences” also rings false.  Whether a sentence is appropriate is more a matter of concern for judges, or to jurors.  What’s “appropriate” one might be disproportionate to another, but – for defense lawyers – less is always more (as a defense attorney friend of mine likes to say).

But then again, that’s the nature of an adversarial system.  So long as both sides are roughly equal, justice is likely to be found somewhere in between.  After all, it’s not “from the benevolence of the baker” that we expect our bread.

Forgery?

Posted By on August 4, 2010

Yahoo says that signing someone else’s name on a check is illegal.

Signing someone else’s name on a check is generally considered forgery and would be illegal in most states, according to Carol Kaplan, a spokeswoman for the American Bankers Association in Washington, D.C. But suppose an adult child signs an elderly parent’s name because the parent is incapacitated or a parent signs a child’s name because the child is away at college. Guess what? Those signatures are still forgeries, unless a power of attorney is in effect.

“In most cases, it’s on behalf of a loved one who probably isn’t going to object, but people should know that that’s forgery,” Kaplan says.

Not exactly.
Forgery is signing someone’s name without authorization.

“Forge” means:
(A)  to alter, make, complete, execute, or authenticate any writing so that it purports:
(i)  to be the act of another who did not authorize that act;

Texas Penal Code 32.21.

If you sign someone else’s name with permission, it’s not forgery.

Some of the Judges in Travis County, for example, have signature stamps, to make signing documents easier. If one were to ask someone (her clerk, for example) to stamp some papers for her, there is no crime there.  It’s not who is holding the stamp (or the pen) that matters, it’s whether the person wielding the stamp is authorized to do it.

The law on forgery is actually even stricter than that.  In addition to being done without permission, the act has to be done “with the intent to defraud or harm another.”