Out on Bail but Not Out of Trouble: Bond Conditions


A person gets arrested, goes to jail, makes bail and gets released.  Other than showing up for court, he’s got nothing to else to worry about, right?  Unfortunately not, in many cases.  In Texas, Chapter 17 of the Code of Criminal Procedure authorizes judges to set what are called bond conditions on a criminal defendant.  Each of these conditions are things that the defendant must do, or must not do, or risk having their bond either revoked (taken away) or their bond amount raised, either of which can mean going back to jail.

These bond conditions fall into two categories, general and offense-specific.  Let’s talk about general bond conditions first.  General bond conditions are broadly-worded warnings from the judge to the defendant like “don’t break the law”, or “don’t use drugs without a prescription”, or “make all your scheduled court appearances”.  Let’s say you are out on bail for offense X and then six weeks later you are arrested again for offense Y, well, the judge on offense X can revoke or raise your bail for that original case.  That can mean another trip back to jail, and more money out of your pocket to get free.

General bond conditions don’t even have to be formally ordered by the judge to take effect.  It is simply assumed that defendants know that if they break the law, use illegal drugs while out on bond, or skip out on court, they are putting their bond at risk.  As the old saying goes, ignorance of the law is no defense.

While general bond conditions can apply to any type criminal charge, offense-specific bond conditions are, as the name says, linked to that particular offense.  For example, an alcohol-related offense can trigger a bond condition that the defendant must use an ignition interlock device on their vehicle or must wear a SCRAM alcohol ankle monitor.  White collar or financial crimes may trigger bond conditions to not hold other people’s money in trust or even handle money at a charity event.  Family violence allegations can trigger a whole host of bond conditions such as being forbidden to possess firearms, to have no contact with the alleged victim of the offense, or even being subject to GPS monitoring.

And the list goes on and on.  Computer crime?  There can be a court order to stay off the internet.  Crimes against a child?  There can be an order to have no contact with anyone under the age of 18.  The possibilities are almost endless.  The law in Texas gives judges the ability to order any “reasonable bond condition” on a criminal defendant who is awaiting their ultimate day in court.  Now, what some may see as reasonable, someone else may consider to be overly burdensome.  So even though a criminal defendant is considered innocent until proven guilty, the experience of being a criminal defendant out on bond can sometimes not feel that way.



DWI vs. DUI: What’s the (Texas) Difference?


DWI: Driving While Intoxicated. DUI: Driving Under the Influence.  Two possibly similar Texas crimes, with two very different potential consequences.  In many states besides Texas, any allegation of driving while under the influence of alcohol is considered DWI.  In contrast, in those other states a DUI is charged when there is suspicion of driving under the influence of drugs.  DWI for alcohol.  DUI for drugs.  Simple really.

Well, sometimes here in Texas we do things our own special way.  In Texas the difference between a DWI charge and a DUI charge can hinge on two factors, the level of intoxication, and the age of the driver.

Let’s talk about DUI first.  In Texas, if a driver under the age of 21 has any detectable amount of alcohol in their system – even if it is not impairing them behind the wheel – they can be charged with a DUI.  The thinking is that in Texas, since it is illegal to consume alcohol under 21 anyway, the State can criminalize the conduct of younger drivers who drank any amount of alcohol.

A DUI in Texas is considered a Class C misdemeanor, which can result in a fine of up to $500.00, but cannot result in any jail time.  A DUI will get your driver’s license suspended however, anywhere from 60 to 180 days depending on the amount of prior alcohol-related driving convictions you have on your record.

Now let’s look at a DWI.  In Texas, a person is considered driving while intoxicated if they are operating a motor vehicle while either not having the normal use of their mental or physical faculties due to alcohol, drugs, dangerous drugs (i.e. prescription medications), or a combination of those substances, or by having a blood alcohol content (BAC) of .08 or higher.  As we see here, neither the age of the driver, nor the type of substance consumed has any bearing on the charge.  Alcohol, drugs, it doesn’t matter: if something makes you mentally or physically impaired, meaning “not normal”, and you drive, you risk a DWI charge.

While a DUI is merely a Class C misdemeanor which cannot result in jail time, a DWI is at least a Class B misdemeanor which carries a potential penalty of up to six months in jail or two years of probation and up to a $2000.00 fine.  And that’s just for your first conviction.  The second conviction is a more serious Class A misdemeanor while a third conviction is considered a felony with the possibility of prison time.

And don’t think that if you are under 21 you will only be charged with that lower DUI offense.  If the police think that you are exhibiting signs of a true DWI, they are free to charge you with that higher offense.

As always, take care of yourself, be careful what you consume, and drive safe.

Talking Texas Law

Please join me at my new YouTube channel, Talking Texas Law as I discuss relevant legal topics with a Texas focus.  Although our overall American justice system shares many similarities from state to state, each state does in fact have its own way of doing things.  I love the law and I enjoy talking about the ins and outs of the Texas legal system!

Who Owns the Case?

I have heard a variation of that question many, many times.  And it is a perfectly reasonable question.  Many people think that with a phone call from the complaining witness / victim to the police, a judge, or the prosecutor’s office, a case can get dismissed.  It’s logical to assume that if a victim was the person who called the police in the first place to get the ball rolling on criminal charges being filed against a defendant, that same person can call or do something to make those same charges get dropped.  Logical, yes…but totally wrong.

Why is that?

The answer is that in Texas, the State owns the case from the minute the police arrive all the way until the final disposition of the case.  That means first the responding police officers, and later the local prosecuting attorneys, have complete discretion on whether or not a case gets filed, and whether or not a case goes forward to prosecution.  Although the victim in a case can ask to have charges dropped, they have zero control over the case.  Fair or not, the prosecutor’s office has the final call.

If a victim tries to call in or correspond with the prosecutor’s office in an effort to get a case dropped, it is not unusual for that office to refer the person to a Victim’s Advocate Coordinator (or VAC).  Via a phone call, email or face-to-face meeting, the VAC will typically talk to the victim and make sure they are not being pressured or threatened by anyone into asking to have charges dropped.  It is important to consider that these VAC don’t work for the victim or the defendant, they are employees of the prosecutor’s office, with all that entails.  It has been my experience that while some VACs are diligent about making sure the victim’s wishes are recorded in case file, others frankly are obstructionist and actively seek to dissuade the victim from requesting to have the case dropped.  In any event, the VAC will likely tell the the victim to fill out an official form requesting a case be dismissed, such as an Affidavit of Non-Prosecution, rather than requesting it over the phone or in an informal letter.  But again, fancy or formal, the victim’s request to have a case dismissed carries no official weight.

This is not to say that the victim’s request to drop charges is meaningless.
The accused’s defense attorney would love to know that a victim is feeling this way.  And an experienced prosecutor, too, should find this information useful as they are weighing and prioritizing court resources.

There is a hidden benefit to defendants when the State has total ownership over a case.  Just like a victim cannot force the State to drop charges, they cannot force the State to file charges in the first place, or force the State to work a case out in a particular way.  A victim cannot, for example, force the police to file charge X instead of charge Y or make the State’s attorney only offer prison time in a case and not offer probation.

For good or for bad, once a criminal case gets filed  in Texas, the State has complete ownership of the case unless and until the matter is finally put to trial before a judge or jury.

Everyone Holds an Ace Card: Juror Unanimity in a Criminal Trial Verdict


One of the fundamental rules of a criminal trial in Texas is that when the jurors render their verdict, it must be a unanimous decision.  Meaning, all 12 jurors in a felony trial or all 6 jurors in a misdemeanor trial must vote the same way either for a Guilty or Not Guilty decision.  The decision on what punishment a defendant is to receive upon a guilty finding is also required to be unanimous.  Unlike much of our regular everyday life or how we conduct civic elections, there is no “majority rules” aspect to a criminal trial verdict or guilt or punishment.  Every vote counts, and essentially it has to be an all-or-nothing decision by the jury.  By law, unless the jury reaches that unanimous verdict, the result is a hung jury and it is as if that trial (or punishment phase of the trial, if the jury is hung only as to punishment) never happened.  The State is free to try the case again without risking any double jeopardy complaints, and the Defendant still is considered innocent until proven guilty.

Now how exactly the jury is split in a hung jury situation may have some bearing on the ultimate outcome of the case.  Let’s say in a major felony prosecution, the jury reached a deadlock at 10 in favor of a Not Guilty verdict and 2 in favor of a Guilty verdict.  An outcome like that may prompt the State to take a second look at its case and perhaps consider proceeding on a lesser charge (if one exists and if it may be perhaps easier to prove), or prompt them to offer a better plea bargain.  Conversely, let’s say a jury was deadlocked on a misdemeanor DWI 5 votes for Guilty and one vote for Not Guilty.  The State would likely in that scenario dig its heels in and retry that same case the exact same way, feeling that perhaps that lone hold-out juror was an anomaly.

Knowing that it takes convincing each and every one of the jurors, not just a bare minimum of them, to vote for either guilt or acquittal, is of great importance when either side is contemplating taking a criminal case to a jury trial.  One must not only have “an” argument that “might” sway a person or two on the jury panel: rather a litigant must ideally have an entire logical series of arguments that will appeal to the entire panel of jurors.

The Rules to a Very Serious Game


I love games.  From ancient classics like chess and Go to more modern favorites like the Settlers of Catan I enjoy the challenge of head-to-head strategic competition.  As a criminal defense attorney, I am often called to engage in another kind of strategic competition: trial.  But where board games can at best win you some bragging rights, the stakes of a criminal trial are much higher: a client’s life and liberty.

While trials are not games, what a trial before a judge or jury shares with a game is a set of rules.  In the next series of blogs, I will be highlighting and discussing some of those key rules, such as the various burdens of proof, the need for juror unanimity in their verdict, and the rules of evidence.

Police Bodycams: For Every Solution, Two New Problems

A very compelling article from the New York Times is worth a close read.  It details some of the dizzying array of problems that may arise with the bulk collection, retention, and distribution of body camera video by police agencies.


At first blush it seems that the bodycam can be a great tool to foster greater transparency and police accountability.  But as the saying goes, there’s no such thing as a free lunch.

And I’m not talking just about the mundane financial costs of the installation, training, and maintenance of the devices themselves.  As this article so clearly articulates, there are other, hidden costs.  What is the financial costs associated with staffing governmental agencies to deal with responding to the requests for these videos?  What systems need to be implemented to deal with the redaction of sensitive information (if any) from the videos?  And also, what is the ultimate cost to privacy?

If you are subject to a routine police stop, let’s say for speeding, who is entitled to a copy of the video of that encounter?   What if no arrest was made, but say an officer was simply responding to a person in emotional distress?  Who is allowed a copy of that video, which perhaps documents someone at a very low and vulnerable time in their life.  And once the copy is obtained, what are the limits of its distribution?  Should they be allowed to be posted up on YouTube?

Ultimately, the mass use of police body cameras, now being hailed as the next great innovation in law enforcement, can create just as many issues as they solve.

The Non-Religious Juror: A Growing Population


In this interesting article by the folks at Keene Trial Consulting, they discuss findings by the Pew Research Centers on changing American demographics, and how this may affect juror pools.  What I found particularly intriguing was the finding that the number of Americans who identified themselves as “religiously unaffiliated” grew sharply from 35.6 million in 2007 to 55.8 million in 2013.  This number includes those who formally declare themselves to be atheists as well as those who merely do not identify with a particular establish religion or are “religiously unsure”.

As Americans change, so does American jury pools.  As trial attorneys it pays to be mindful of this fact.  Persuasion is all about matching the message to the audience.  If a trial attorney goes down a path of persuasion that doesn’t take into account the mindset of the jurors, he or she risks starting off at a significant disadvantage. Religious-based defense pleas for mercy or compassion on the one side, or for prosecutorial calls for order and retribution on the other, may increasingly come across as tone-deaf to an audience of jurors who are not as deeply steeped in the religious traditions of previous generations.


Future Dangerousness: Skin Color is Not a Crystal Ball


The U.S. Supreme Court will hear arguments this week about whether a Texas defendant, who had previously been sentenced to death, should be allowed a second sentencing hearing because the jury heard evidence from an expert witness (called by the defense!) who testified that the defendant was more likely to commit violent crimes and pose a future danger because he is black.  In the case of Duane Buck, as well as in six other Texas death penalty cases, psychologist Walther Quijano testified that based on his research, a black defendant was statistically more likely to commit violent crimes because of his race.

The issue of future dangerousness is critical in Texas law because without a unanimous finding by the jury that the defendant on trial for a capital offense poses a future danger to commit violent acts, that defendant cannot be sentenced to death and must instead be sentenced to life in prison.  In the Buck case, the original jurors sent several notes to the court during their deliberations, with many of their questions having to do with the issue of future dangerousness.

It is interesting to note that in the six other capital cases that this “expert” offered the same type of testimony, Texas conceded error during the appeals process and agreed to conduct a new sentencing hearing on the issue of life in prison versus death.  In this case however, under a new Attorney General, Texas is not conceding and is requiring this defendant to make his case before our highest court.

I think it is frankly unconscionable for Texas to stand behind the shocking testimony from this discredited so-called “expert”.  They punted on six cases already, and I’m afraid to say they should just grit their teeth and punt on the seventh.  As a former prosecutor of murder cases I know what a new sentencing hearing entails: re-opening old wounds to a victim’s family, hunting down witnesses that may have moved, retired or even passed away, marshalling trial evidence that may have been archived in a vault somewhere (or lost!) for years.  I know.  I’ve been there.  But when the State is going for the utmost punishment – death, the ultimate negation of one’s life, liberty and pursuit of happiness — it’s best to do it with clean hands.  If Buck deserves death, let a jury deliver that sentence, but a jury who has not been tainted by evidence that so improperly attempts to link the color of their skin to the content of their character.

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