Client was traveling south on IH-35 when he was stopped for Speeding (74 in a 60 mph zone) and Failing to Maintain a Single Lane. Officer observed Defendant’s driving as Defendant approached Cesar Chav...ez Street. Officer detected a strong odor of alcohol, bloodshot glassy eyes, restricted pupils, and slurred and confused speech. Defendant admitted to drinking one glass of wine at dinner and one shot of vodka earlier in the day. After administering the Horizontal Gaze Nystagmus Test (6 out of 6 clues plus vertical) and a Finger Counting Test the Officer arrested defendant for Driving While Intoxicated. The Officer obtained a warrant for blood. The blood test showed Defendant had a BAC of 0.173 g/dl which is more than twice the legal limit.
Criminal defense
Jury Accepts Self-Defense Claim
Oct 31, 2017
OUTCOME: Not Guilty
FACTS:
Defendant was falsely accused by his 19-year-old son of Assault with Bodily Injury. We argued that this was a case of Self-Defense. The Deputies had made a mistake and we needed to show that to... the jury. When the Deputies pull up, they see Defendant’s son outside the house with a bloody nose. He is complaining that his father physically assaulted him. The Deputies talk to both father and son and arrest father for being the first aggressor.
IMPORTANT EVIDENTIARY OR PROCEDURAL ISSUES:
This was a self-defense case. The Deputies spent less than 30 minutes talking to the parties. They made a quick decision and tried to stabilize the situation. But deciding that Defendant was the first aggressor was a mistake. At trial, the prosecutor played a short recording for the jury. The recording has the Defendant admitting to slapping his son. However, on cross-examination the defense played a later part of the same recording. That part had father stating his son attacked him first. After playing the recording, the Deputy admitted he got it wrong.
The Deputies also admitted that they knew nothing about the parties’ history. The defense spent a considerable amount of time showing that violence began more than 2 and-a-half years earlier. The son’s aggression toward father had continued to escalate with greater frequency and intensity over the years. Son exhibited signs of rage and had uncontrolled temper tantrums. Defendant and his wife took son to seek professional counseling but it didn’t help. As the violence continued, Defendant feared that his son would lash out at any moment. Defendant had a photograph showing his injuries from the encounter. The son never showed up for trial. The jury returned a Not Guilty Verdict in less than 25 minutes.
NOTEWORTHY REQUESTS OR RULINGS FROM THE COURT:
We used scaled questions to pick our jury. On one question, a juror responded with a “3” indicating that she could not entirely follow the court’s instructions. When we challenged the juror for cause the judge was hesitant to strike her. After a follow-up question or two the judge agreed that this juror could not follow the law and removed her for cause. During the charge conference, the judge allowed an instruction on “Apparent Danger” in addition to the “Reasonable Belief” definition that normally accompanies self-defense instructions. This was justified by the long history of violence perpetrated by the son against the defendant and others. The judge also granted a request for a “Stand Your Ground” instruction.
DUI and DWI
Police Violated the Warrant Requirement When they Illegally Entered Client’s Home
Sep 07, 2017
OUTCOME: DISMISSED
A driver alleged that my client damaged her vehicle and left without exchanging information. In a quick series of events, my client became the subject of a DWI investigation. Deputies entered my clie...nt’s home and began a search for evidence. We argued that the Police violated the warrant requirement when they illegally entered client’s home — the court agreed.
After the accident, the driver followed my client home. She saw client pull into her garage and close the door behind her. Travis County Deputies arrived and knocked on the front door and the garage with no response. One Deputy testified that he went alongside the garage and looked through a side window and could see client sitting in her car. There was no sound of an engine running and client did not exhibit signs of distress.
Client never consented to entry. The Deputies never saw an offense committed. There was no evidence of hot pursuit, destruction of evidence, nor an attempt to flee or escape. They testified that they could have obtained a search warrant from a Municipal Court 5 to 6 minutes down the road but said they didn’t need one.
After 45 minutes, client opened the garage door. The Deputies immediately entered the garage and then the home. That led to the detection of alcohol and a DWI investigation. We argued that the evidence was obtained illegally and in violation of Defendant’s rights under Texas and Federal law.
One Deputy claimed to have a “Master Peace Officer’s License” yet seemed to have a total lack of understanding about the need to obtain a warrant. He claimed simply that he did not need a warrant to enter the home. The Deputies had functioning audio video equipment but didn’t use it to record the investigation. A supervisor testified that he found nothing wrong with entering client’s home and that his fellow Deputies had done exemplary work on the case. We argued that if allowed to stand, this same improper police misconduct would be repeated with impunity. The court considered whether the actions of the Deputies could be classified as “flagrant misconduct” and counted this factor heavily against the State.
The court agreed that the community caretaking exception did not apply in this case. The record showed that the Deputies were not primarily motivated by their community caretaking function, but instead by their quest to make a DWI arrest. Client was not exhibiting any signs of distress, she had arrived safely at her home, she did not need the assistance of the Deputies, and she did not present a danger to herself or any other person.
Finally, we argued that there is no diminished expectation of privacy in a residential garage. The expectation of privacy in a garage is the same as the privacy expectation one has for the home itself. There was simply no excuse for not attempting to seek a search warrant.
The Court suppressed all the evidence in the case and the State dismissed.
DUI and DWI
Boating While Intoxicated Dismissed
Aug 18, 2017
OUTCOME: DISMISSED
Client was having a peaceful afternoon on the lake with friends. It was beautiful. The boat was safely moored and everyone was having a good time. After a few hours, Game Wardens with the Texas Park...s and Wildlife Department came by to conduct a water safety inspection. They came up along the port side and seized my client’s vessel. There was no other reason to stop the boat. Legally the police don’t need reasonable suspicion to stop a motor boat that is 16 feet or more in length. They can conduct water safety inspections to make sure the vessel has a certificate number, fire extinguisher, a whistle or working horn, floatation devices, and working lights. If the officer observes signs of intoxication while conducting the safety inspection, there would be reasonable suspicion to briefly detain and investigate for Boating While Intoxicated. Client demonstrated that all of his water safety equipment was working and he passed inspection. Despite all that, he was arrested for Boating While Intoxicated. Additionally, he was facing the potential loss of his driver’s license. He wanted his case dismissed.
The police had no articulable facts to support any drinking at all. The officer asked client how long he had been on the lake and client responded “two hours, mas o menos.” The officer thought it was a little “funny” that client responded that way and that client took a little while to find his boat’s certificate number. Client was walking normally, had no trouble standing, and was stable on his feet.
Client was ordered off his boat and onto the Park’s Police Boat. The officer was within three feet of client and had not detected an odor of alcohol nor did he suspect illegal drug use but the officer wanted to conduct field sobriety tests.
We argued that Defendant was arrested for Boating While Intoxicated without a warrant, probable cause, or lawful authority and was subjected to tests while unlawfully in custody. In particular, we maintained that the arresting officer had no reasonable suspicion to detain or order Defendant off his boat.
Both the Administrative License Revocation Judge and the Trial Court Judge agreed. Client was able to keep his driver’s license and the BWI was dismissed.
DUI and DWI
Pulled over for DWI Not Guilty AV Viewer
Mar 07, 2017
OUTCOME: NOT GUILTY
Late one night, an Austin Police Officer pulled my client over claiming he ran a red light. My client produced an expired driver’s license (his current license was still in his wallet) and he didn’t ha...ve his insurance card, which by the way was current and valid. He gave his passenger’s name instead of his own. He gave part of his home address and needed to be prompted to provide the rest. The officer wrote that my client did not know why he had been pulled over even though he was told less than 5 minutes ago the reason for the stop and previously argued that the light was yellow. The officer said he smelled a strong odor of alcohol and noticed that my client’s eyes were glassy and dilated. My client admitted to having two 12 ounce bottles of beer earlier in the evening.
When asked, my client said he didn’t know the time. My client refused the field sobriety tests, the portable breath test, refused to provide a breath specimen with an intoxilyzer, and offered a series of explanations for why he could not do the tests. He continued to insist that the light was yellow.
The officer then arrested my client for DWI. We took the case to trial.
Contrary to the officer’s rendition of the facts in this case, the video showed that my client did not dangerously barrel through a red light. By pausing the video, we showed that client entered the intersection while the light was changing from green to yellow to red. Defendant drove within the speed limit, used his turn signal, and brought his vehicle to a stop in a safe and reasonable manner. Characterizing his driving as dangerous compromised the officer’s credibility. Defendant’s driving was safe and the basis for the stop was at best questionable. The client had no trouble stepping out of his vehicle, in fact throughout the video he looked solid with no noticeable sway. The officer had less than two years with APD and did not call a “55 Unit” out to conduct the investigation. Despite the DWI Task Force’s superior training, the officer maintained that he was just as qualified to explain and demonstrate the tests.
Client was quite a bit more than 50 pounds over weight and had back surgery which caused him pain when he attempted the test positions. His back prevented him from standing with his feet together or in the heel-toe position. The officer repeatedly minimized those concerns and insisted that my client was able do the tests. My client did perform his own modified Walk and Turn taking exactly 9 steps out along a straight line, walking normally with his hands at his sides, counting out loud without skipping or repeating any numbers, turning, and taking exactly 9 steps back. Despite the officer’s characterization that this was a refusal, there was no apparent loss of mental or physical faculties. I asked the officer why he did not include evidence of my client’s sobriety in his report to which the officer had no response. This left the jury with the impression that the sobriety tests were nothing more than traps designed to make a test subject fail.
Finally, we wanted the jury to know that the officer could have obtained a blood search warrant. The officer said that under APD policy he was not authorized to seek a warrant unless there was an accident involving death or serious bodily injury or the Chief of Police designated it a “No Refusal Weekend.” The judge agreed with our position that the law allows for blood warrants and instructed the jury under Article 18.02(10) Texas Code of Criminal Procedure that a warrant could issue to collect a blood specimen from a person who is arrested for DWI and refuses to submit to a breath or blood alcohol test.
Criminal defense
Travis County Judge Grants Defense Counsel’s Motion for a Directed Verdict and Acquits the Defendant of Assault
Feb 03, 2017
OUTCOME: Not Guilty
It was near closing time and the bars were starting to empty. Defendant had been out with friends and was escorting his fiancé to her car. After a few steps, Defendant saw two large young men approac...hing from down the block. They were talking loud, making eye contact, walking toward Defendant, and not slowing down. As they continued, the two men charged between the couple knocking Defendant’s fiancé to the ground. When Defendant leaned down to help her up one of the men turned with his hands raised. It all happened in an instant. Defendant threw one punch and knocked him out. The other guy closed in and soon joined his friend on the pavement.
Defendant was arrested for Assault. We helped him with his release from jail and scheduled a visit. He maintained that he had done nothing to provoke these men. They were the aggressors. They were drunk and wanted to fight. He did not know what they were capable of and he feared that they wanted to cause some harm. This was a clear case of self-defense. We both felt that the police got it wrong. The officer had done no real investigation and based his decision on who had gotten the worst of it — not who started it. The prosecutor’s office maintained that the men sustained serious injuries and that the defendant should take a hit on his otherwise clean criminal record.
We disagreed. We didn’t think he should plead guilty to anything. We set his case for a trial before the court.
The state called a witness who claimed to have seen the whole thing. In short, he believed the Defendant was responsible for the Assault. He said that after the men accidentally bumped into the defendant they tried to deescalate the situation. They had their hands up as if to say they were sorry. The witness said they didn’t appear to want to fight and it was the Defendant who overreacted. He implied the Defendant exhibited a guilty mind by walking away after knocking out the injured parties.
The arresting officer testified that he had not seen the fight nor what led up to it. His role was to question the participants and help facilitate medical transportation. He was very confident that he arrested the right guy. We asked if he had retrieved any Halo camera surveillance footage of the incident to which he responded no. We asked if pedestrians regularly film street fights like this with their video camera phones. He said that yes that was common but he did not try to ask anyone if they had filmed it. Contrary to the story the first witness told, the Officer admitted that the Defendant never tried to avoid apprehension and was patiently waiting a few feet from where it all happened. When asked about the first witness, the officer admitted that he did not know about his alcohol consumption. Defense counsel asked the officer whether someone in the witness’s position might have lost the normal use of his mental faculties after four beers and the officer admitted that it would be a concern.
At a crucial moment during the trial, the prosecutor attempted to have the officer identify the names of the complainants. Their names were pled in the charging instrument and it was necessary for the state to prove their names as an essential element of the State’s case. The officer had no personal knowledge of the complainants’ identities. We repeatedly objected that this was inadmissible hearsay and a violation of the right to confrontation. The prosecutor argued that the State always gets to introduce the names of “the victims” in their cases and that this was somehow an exception to the hearsay rule. We provided the court with a copy of Guerra v. State which supported our position. The court agreed that the officer’s identification of the complainants was inadmissible. Without having personal knowledge of their names, a police officer could not testify to the identities of the complainants. We requested a Directed Verdict and the court granted our request. The State’s evidence was insufficient and Defendant was acquitted of Assault.
DUI and DWI
Stopping Past the Stop Line Motion to Suppress Granted
Aug 18, 2016
OUTCOME: Motion to Suppress Granted - Case Dismissed
Where my client's front tires may have been past the clearly marked stop line at a 4 way intersection, there was no statutory violation where client's rear tires were behind the line.
Several views ...of the video during pre-trial hearing revealed that client was stopped and there was no dispute that his rear tires were behind the stop line. Motion to Suppress Granted.
DUI and DWI
Flat Tire Is No Reason to Stop a Driver
Jun 15, 2016
OUTCOME: Motion to Suppress Granted - Case Dismissed
Driver was heading east on a 3 lane divided street in Austin, Texas when an Officer observed that the vehicle had a flat tire with smoke coming from the tire. Officer immediately turned to follow the ...driver for two blocks and saw driver pull into her apartment complex. Officer agreed that stopping on this street to fix the flat would not have been reasonable and that it made sense for the driver to drive two blocks on a flat to get home. Officer agreed that this was NOT a community care taking investigation.
Officer believed driver was intoxicated and arrested for DWI. We showed that the driving was safe and within the speed limit. Officer saw no driving offenses. The court agreed that driving on a flat for two blocks without endangering others was not a Texas Transportation Code Violation and that the officer lacked reasonable suspicion for the stop.
DUI and DWI
DWI Dismissed Where Officers Entered a Home without a Warrant
Mar 29, 2016
OUTCOME: Motion to Suppress Granted - Case Dismissed
Officers violated the warrant requirement when they entered Client’s home to investigate a DWI. Client was seen drinking and exhibiting some signs of intoxication at a public park. She then proceeded... to drive a short distance home. Upon arriving home several eye witnesses directed the police to the home and explained what they had seen at the park. The police seized my client from her own home and compelled her to perform tests. Our Motion to Suppress Evidence was granted because the Police entered my client's home without a search warrant.
DUI and DWI
Officer Failed to Video Record the Reason for the Stop
Mar 24, 2016
OUTCOME: Motion to Suppress Granted - Case Dismissed
Despite having video equipment in his car, Officer failed to visually record the reason for the stop and there was no credible evidence that the defendant committed a traffic violation justifying the s...top and seizure. We were able to show 9 other instances where the same officer failed to record the reason for the stop. The Judge Granted our Motion to Suppress because he found the evidence to be insufficient.
