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David B. Frank
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David Frank’s Legal Cases

14 total


  • Not Guilty - DWI

    Practice Area:
    Criminal defense
    Outcome:
    Not Guilty in 15 minutes
    Description:
    This case involved a DWI prosecution where my client was stopped for speeding and failing to signal. The officer reported a strong odor of alcohol coming from my client's breath and that he had lost the normal use of his mental and physical faculties. We demonstrated to the jury that the arresting officer failed to properly instruct and demonstrate the field sobriety tests and abused his power during the confrontation. Despite the officer's poor instructions, my client presented well on his video. Once the officer was exposed for misrepresenting the facts, the jury stopped believing anything he had to say. My client was able to get a quick not guilty followed by a quick expunction of his criminal records.
  • Sexual Assault Dismissed in Bastop County

    Practice Area:
    Criminal defense
    Date:
    Nov 01, 2000
    Outcome:
    No Billed by Bastrop County Grand Jury
    Description:
    Client was charged with Aggravated Sexual Assault of a Child in April 1999 in Bastrop County. We hired a Polygraph Examiner who found that the defendant showed no deception in answering questions about the charges. We brought in a forensic psychologist specializing in child sex cases. The psychologist produced a report which favored the client's innocence claim. We consulted with CPS workers and obtained records showing the propensity of the complaining witness to fabricate. We obtained additional information from the complainant's treating physicians which helped challenge the state's allegation of abuse. On-going protracted discussions with the Assistant District Attorney handling the case was essential. RESULT: THE CASE WAS NO BILLED BY GRAND JURY.
  • DANCE INSTRUCTOR NOT GUILTY IN ASSAULT

    Practice Area:
    Criminal defense
    Date:
    Oct 25, 2011
    Outcome:
    Not Guilty
    Description:
    A Travis County jury acquitted Austin hip-hop instructor of one count of sexual assault. The not-guilty verdict came after a trial this week in state District Judge Mike Lynch's court. One of the Defendant's former students testified that he sexually assaulted her at his Northwest Austin apartment after a night out in 2006, defense lawyer David Frank said. The woman was 22 at the time. The Defendant, 43, was an instructor at a school near the University of Texas. He has also been an instructor for UT's informal classes.
  • Mistrial declared in case of former stripper, boyfriend accused of murder

    Practice Area:
    Criminal defense
    Date:
    Jun 13, 2011
    Outcome:
    Mistrial
    Description:
    A judge declared a mistrial Monday after a Travis County jury reported being hopelessly deadlocked on whether a former stripper and her boyfriend committed murder or aggravated robbery in the death of a strip club patron last year. The Defendant, 23, had been accused of killing Elmore Allen, 49, after he left the Hot Bodies Gentlemen's Club. Counsel argued that the Defendant struck Allen to protect his girlfriend from an impending sexual assault. The jury deliberated for three hours Friday and close to eight hours Monday. The foreman first reported that the panel was split 7-5 in the early afternoon, and despite state District Judge Bob Perkins' encouragement that they reach a verdict, the jury foreman later reported it was hopeless. "It is our firm belief that this decision is final and will not change without a surrender of our conscientious convictions," the foreman wrote in a note read by Perkins in court. Prosecutor Kathryn Scales said prosecutors would further evaluate the case before deciding whether to proceed to trial again. One woman seated with the defendants' supporters cried. Defense lawyer David Frank said the decision shows weaknesses in the state's case. Jurors told them the split was 7-5 in favor of acquittal.
  • Coffee-table art or off-the-shelf porn?

    Practice Area:
    Criminal defense
    Date:
    Apr 30, 1998
    Outcome:
    Acquitted on 4 out of 5 counts.
    Description:
    FROM THE AUSTIN AMERICAN STATESMAN: The photographers' work has been found in coffee table books, shown in galleries and museums coast to coast and can be found in Austin' s largest bookstores, including Barnes & Noble and Book People.   This week, in a Travis County courtroom, photographs from Sally Mann' s Immediate Family'' and Jock Sturges' ``Radiant Identities,'' as well as a Canadian film and photos from a Time-Life book on photographing children, are being called child pornography.   The books, which contain black-and-white photos of nude children and adolescents, have been part of a sharp art vs. porn debate across the country, with anti-pornography protesters urging prosecutors to file charges against book stores that sell such work.   That debate is now playing out before an Austin jury hearing the case of a Manor man.   Police began investigating Richard Thomas Roise, who was convicted of sexually assaulting a boy in Tarrant County in 1991, because they suspected him of molesting a 10-year-old boy he had befriended. When the boy refused to talk to police, they seized books, films and photos from Roise's motel room and charged him with possession of child pornography.   Roise, 41, who if convicted faces 25 years to life in prison as a habitual criminal, has pleaded not guilty. His lawyer argues that the seized material has artistic and educational value and is not pornography.   If Roise is convicted for possessing these books, will the bookstores that sell them face felony charges as well? And what about the Austin Public Library, which has Mann's book in its collection? Or other residents who own the books or rent the movie? Thwarted investigation   Roise had been living at the Manor Inn for two months when the mother of the boy told police that her son had gone to buy sodas with Roise and had been away for hours.   In a dresser drawer, [police] also found an album with 29 photographs of naked children.   Roise's lawyer, David Frank, hired New York photography critic A.D. Coleman as an expert witness. Coleman, who wrote the introduction for Sturges' ``Radiant Identities,'' said that the 29 photos came from other widely available photography books, including the ``Photographing Children'' installment from a Time-Life book series. State law defines child pornography as an image of a child under age 18 engaging in sexual conduct. Among the elements of sexual conduct are intercourse - real or simulated - masturbation and lewd exhibition of the genitals.   Although ``Leolo,'' a 1992 film by French Canadian director Jeane- Claude Lauzon, was shown in U.S. art theaters and doesn't contain nudity, prosecutors argue that two scenes depict masturbation. As for the nude photos in the books and the photo album, [prosecutors] said the poses are sexually suggestive and therefore lewd.   But the law doesn't define ``lewd,'' Frank said. ``That means that whoever is on this jury says that lewdness means whatever they think it means.'' Book chain under fire   Sturges and Mann have been controversial since their books were released in 1992.  Mann pointed her lens at her three children over a seven-year period. Sturges, who got his start in the 1970s photographing naked hippies at his brother's California commune, recruits nudists to pose for him. ``Radiant Identities'' is full of naked blond children.   Those who consider the photos offensive argue that just because the work is dubbed "art'' and sold in chain stores doesn't mean it's not pornographic.   A buyer for Book People, Ell Watts, testified this week for the defense in Rose's trial. Watts defended Mann and Sturges, saying no photography collection would be complete without their work.   ``What's next?'' she asked outside the courtroom. ``If they can get off the shelves what they find offensive, can I get off the shelves what I find offensive?''
  • Not Guilty Habitual Aggravated Assault with a Deadly Weapon

    Practice Area:
    Criminal defense
    Date:
    May 20, 2013
    Outcome:
    Not Guilty
    Description:
    FACTS: Defendant lived together with housemate, the Complainant. Defendant struck Complainant several times with closed fists and wrestled him to the ground. Complainant responded by putting Defendant into a sleep hold and biting his finger. Finally, according to Complainant, Defendant struck Complainant several times in the head with a heavy ceramic dog bowl which shattered to pieces. Complainant blacked out during this part of the fight and then came to and begged Defendant to stop. Complainant ran to a neighbor’s house and called the police. He later went by ambulance to the hospital. Photographs showed 4 large bloody lacerations to the head with staples closing the wounds. Shortly after Complainant was transported to the hospital, an APD Officer arrived on the scene and found the house deserted. She and another officer went inside and took photographs of the shattered dog bowl, the blood stained carpet, and the living room area where the fight occurred. These officers left without seizing any physical evidence. After a few hours, Complainant was discharged from the hospital and called 911 to request a police escort back to his home. Upon arrival home, the police cleared the house and took additional pictures of the broken dog bowl. The Supervising Officer that night told his officers not to seize the dog bowl and just to take pictures. The defense argued that the dog bowl was not a deadly weapon. While the bowl may have been capable of causing Serious Bodily Injury in the abstract, Defendant’s intended use was not do so in this case. Medical records showed that the injuries were limited to the head wounds. Complainant was prescribed a pain reliever and no further medical complications arose from the injury. While the photos at the time of the incident looked angry and severe, at trial Complainant did not show the jury any scars or permanent disfigurement, in fact his hair seemed to have fully grown back. Complainant’s neighbor testified that the wounds healed. Defendant never exchanged any words threatening to use the bowl as a weapon and the proximity of the bowl did not suggest that Defendant intended to use it to harm Complainant. Most importantly, without the physical bowl itself, the jury was deprived of the opportunity to hold the alleged weapon and judge its “deadliness.” Pictures of the broken dog bowl tended to contradict the description given since there was no visible blood on it. The Defense attacked the explanation provided by the police by introducing APD’s Policy Manual Rules. By comparing the handling of this investigation with APD’s Policy Manual Rules, the jury doubted that the police themselves considered this a major crime at the time the investigation was done. Several jurors during voir dire expressed their reluctance to convict on a “one witness” case. The defense emphasized that complainant blacked out during part of the fight and left out parts of the story that tended to make him look like the aggressor. By the end of the trial, the jury had doubts about whether the injuries were caused by the dog bowl, falling on the floor, or hitting his head on the furniture.
  • DWI Total Refusal – 37 Minute Not Guilty

    Practice Area:
    DUI and DWI
    Date:
    Oct 09, 2013
    Outcome:
    Not Guilty
    Description:
    Driving 16 MPH over the speed limit, my client was stopped for DWI. After she asserted her right to refuse the field sobriety tests, a DPS Trooper arrested her and demanded a breath sample. She refused to provide breath or blood. At trial, the prosecution tried to shift their burden of proof onto the defense by suggesting that my client could have "proven she was sober" if she had not refused to take tests. The jury emphatically rejected the prosecutor's argument. The jury was troubled by the obvious conflict between the defendant's constitutional right not to incriminate herself and the state's argument that she had a duty to prove herself innocent by taking sobriety/breath/blood tests.
  • Convictions Reversed on Appeal - Implied Consent - Unconstitutional

    Practice Area:
    DUI and DWI
    Date:
    Apr 07, 2014
    Outcome:
    Trial Court Reversed on Appeal
    Description:
    Sutherland v. State (Driving While Intoxicated (07-12-0289-CR) OPINION: To the extent that Transportation Code § 724.012(b)(3)(B) can be read to permit a warrantless seizure of a suspect’s blood in the absence of exigent circumstances or the suspect’s consent, it runs afoul of the Fourth Amendment’s warrant requirement. As the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from the bloodstream would support a warrantless seizure of a specimen of the defendant’s blood, the trial court erred by denying the defendant’s motion to suppress.
  • Dance Instructor Found Not Guilty in Sexual Assault

    Practice Area:
    Criminal defense
    Date:
    Oct 26, 2011
    Outcome:
    NOT GUILTY
    Description:
    A Travis County jury on Wednesday acquitted Austin hip-hop instructor of one count of sexual assault. The not-guilty verdict came after a trial this week in state District Judge Mike Lynch's court. One of the defendant's former students testified that he sexually assaulted her at his Northwest Austin apartment after a night out in 2006, defense lawyer David Frank said. The woman was 22 at the time. The Defendant was an instructor at the Dance Zone, a school near the University of Texas. He has also been an instructor for UT's informal classes.
  • Mistrial Declared in Case of Former Stripper, Boyfriend Accused of Murder

    Practice Area:
    Criminal defense
    Date:
    Jun 13, 2011
    Outcome:
    Mistrial
    Description:
    A judge declared a mistrial Monday after a Travis County jury reported being hopelessly deadlocked on whether a former stripper and her boyfriend committed murder or aggravated robbery in the death of a strip club patron last year. Elmore Allen spent his final night alive last year at the Hot Bodies Gentlemen's Club in Southeast Austin, where he drank, flashed cash and got table dances from several strippers, including Jessica Krause-Patterson, a prosecutor said Tuesday. When Allen, 49, left the club at closing time, he was with Krause-Patterson. The next morning, he was dead in the parking lot of an apartment complex where Krause-Patterson, then 19, used to live, said prosecutor Kathryn Scales. Scales told a Travis County jury that Allen was killed while being robbed by Krause-Patterson, 20, and her boyfriend, Jon Tyrell Banks, 23. They are being tried together on murder and aggravated robbery charges before senior state District Judge Bob Perkins. They each face up to life in prison if convicted of either charge. David Frank, who represents Banks, gave the jury a different version of what happened that night. He said Allen was intoxicated, had groped Krause-Patterson while giving her a ride home and that Banks later attacked Allen to save Krause-Patterson from him. "There is no intent to kill Elmore Allen," Frank said. "His intent was to save his girlfriend from what is obviously and imminently going to be a sexual assault." Scales said Hot Bodies is an all-nude strip club off Burleson Road and that Krause-Patterson would usually get rides to and from the club from Banks. The night of Allen's death, Banks was there but left 15 minutes before closing with his brother, she said. Allen was found dead later that morning with his pockets turned inside out and his cellphone, wallet and one of his rings gone. He had a gash near his eye, his head was resting on a stone garden retaining wall, and he had suffered "a devastating fatal wound to the back of his head,". Frank implored the jury to wait to hear all of the evidence before reaching a conclusion. Frank said Banks and his brother went to the club the night Allen died but left just before closing to get gas. Finding the brothers gone when the club closed at 2 a.m., Krause-Patterson accepted an offer of a ride with Allen, Frank said. During the drive, Allen turned the radio up so Krause-Patterson could not make calls on her cellphone and began groping her, Frank said. "Elmore Allen is breathing heavy on her," Frank said. "He had his hands on her shoulders, on her breasts. He was feeling her all over." Frank said that Krause-Patterson asked Allen to let her out during the drive but that he refused. When they got to the Colonial Village at Canyon Hills apartments on Bluff Springs Road, Krause-Patterson got out and tried to walk away, but Allen followed her and would not let go of her, Frank said. "She is screaming 'Let go of me,'" Frank said. He told the jury that soon Banks, came running and told Allen, "Get off my girlfriend." "Elmore Allen, who has a blood alcohol concentration of .09, gets in front of Jessica and says, 'Oh, no, you don't. I'm the man here," Frank said. "And J.T. (Banks) stands up and protects his girlfriend against Elmore Allen and he hits him, and Elmore Allen falls back."