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.

Helping Tomorrow’s Attorneys Today

Recently, I had the pleasure and privilege to help out a team of University of Texas School of Law students prepare for an upcoming competition hosted by Stetson University in Florida.  I was asked to judge a practice, or “spar” round, whereby the students could practice their advocacy skills in completion-like conditions, with an opposing team and a judge making rulings and asking questions from the bench.  This particular completion is focused on a mock pretrial hearing involving issues of evidence suppression under the 4th Amendment, the admissibility of an expert witness’s testimony, and a defendant’s motion to sever his trial from that of his co-defendants in a mock federal conspiracy charge.

These trial advocacy programs are always in need of experienced attorneys who can act as coaches, mentors, and judges for their various teams.  Each time I lend a hand (in a large or small way) to a trial advocacy event, I always find it very energizing being around these driven, upcoming professionals.  We lawyers and lawyers-to-be tend to be of a competitive nature.  And the law students who actively seek to pit themselves against their peers in legal advocacy contests are can be the most competitive of the bunch.  I never fail to be impressed by the diligence and hard work these students bring to the fight.  If you are a lawyer, don’t be shy about lending a hand; it’ll do you good.

Not to sound like a dinosaur, but when I was in law school, most trial advocacy competitions focused on the old standby classics of Moot Court (appellate arguments) and Mock Trial (jury trials).  While these were fun and instructive, I would have welcomed the more expansive opportunities that today’s law students can take advantage of when it comes to competition.  Today, there are competitions embracing many facets of the legal practice, such as the aforementioned pretrial hearings, meditations, negotiations, voir dire, brief writing, and more.

If only there was a competition entitled “Fee Setting and Fee Collection”.  Now that would be something!

Parking While Black

Court Grapples with “Parking While Black” Scenario

The 7th U.S Circuit Court of Appeals is hearing arguments in a case that involved police officers searching a parked car.

Sounds pretty routine?  Well, this particular search, in the opinion of at least one law professor, this case involves “an egregious instance of police aggressively targeting black motorists who may be illegally parked”

Police can justify a detention of a person if they witness an infraction of the law.  If that detention leads to the discovery of evidence of a crime, that evidence will likely be held admissible.  This is the common, everyday scenario where an officer observes perhaps a traffic violation in a moving vehicle, stops that vehicle, makes contact with the driver and then based on contact with the driver or based (let’s say the driver is acting intoxicated) on a view of the inside of the vehicle (maybe they see an open container of alcohol or evidence of drug use), develops probable cause to search the car further or even arrest the driver.

In the situation before the 7th Court, the police saw a vehicle which had parked too close to a crosswalk.  Based on that infraction, they parked their patrol cars in a manner to block the suspect car in, and then made contact with the car’s occupants.  They observed a back seat passenger with a gun and subsequently arrested him for unlawful possession of the firearm.  That defendant sought to exclude the gun from evidence under the theory that it was obtained in violation of the Fourth Amendment.  A three-person panel of 7th Circuit judges had previously ruled that the officer’s detention and search were justified and not in violation of the Fourth Amendment, but that decision has been vacated and the entire court will hear the issue on re-argument.

The crux of the matter is whether or not this court will give a stamp of approval to the police detaining and searching for violations of essentially such de minimus statutes as municipal parking ordinances.  No one denies the police’s right and authority to pass by a parked car and shine a flashlight inside.  But to block a parked car with trio of patrol vehicles, essentially creating an instant detention of the vehicle’s occupants, should that be given the judicial thumbs-up?

Although 7th Circuit decisions are not binding here in Texas, nevertheless a case to keep one’s eye on.  What appears in another federal Circuit one day may certainly appear in the 5th Circuit or a Texas state court, or even the United States Supreme Court, another day.

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