Detention Prolonged beyond the Time to Write a Traffic Ticket Suppression Granted
Dec 09, 2015
OUTCOME: Motion to Suppress Granted - Case Dismissed
A Williamson County Judge granted a suppression motion in a case involving an alleged DWI. The driver was stopped for running a red light. At a hearing the APD Officer stated that the driver refused ...to answer questions, refused to perform sobriety tests, and refused breath and blood. The officer testified that he never smelled the odor of an alcoholic beverage. Testimony showed that some time later another officer was called in to administer field sobriety tests. According to the officer, the stated reason for the prolonged detention was: "something just didn't look right." The defense provided the court with a copy of a U.S. Supreme Court case decided earlier this year called United States v. Rodriguez and explained that the detention became illegal after the time it would have taken to simply write a ticket for the traffic light violation. The defense had already locked in the officer's testimony at the ALR Hearing and the officer repeated his testimony at the pre-trial hearing. The price of admission required picking a jury before arguing the Motion but it was well worth it - MOTION TO SUPPRESS GRANTED.
DUI and DWI
Officer was Mistaken about Who Entered the Intersection First
Aug 28, 2015
OUTCOME: Motion to Suppress Granted - Case Dismissed
Slow-Motion presentation of video showed that Officer was factually mistaken when he thought that Defendant failed to yield right of way. Client approached the intersection a split second before the o...ther driver and Judge agreed that the Motion to Suppress should be granted.
DUI and DWI
Visible Horizontal Gaze Nystagmus
May 22, 2015
OUTCOME: NOT GUILTY
Austin DWI Task Force Officer stopped client for driving with no headlights at night. Officer smelled alcohol and started testing for DWI. Client performed well on the tests but had visible nystagmus... at maximum deviation. Officer drew the camera in for a close-up of client's eyes. At trial, the prosecutors introduced a video demonstrating a subject with pronounced Horizontal Gaze Nystagmus. On cross-examination, the officer admitted to numerous causes for nystagmus other than alcohol intoxication including prescription medications that client admitted to taking. The jurors did not believe client was intoxicated and found her Not Guilty.
DUI and DWI
APD OFFICER FAILS TO VISUALLY RECORD HIS STOPS
Apr 08, 2015
OUTCOME: Case Dismissed
Our office spotted a repeating problem with one Austin Police Officer who failed to video the basis for his DWI stops. The officer was on the DWI Enforcement Team. He regularly came to court testifyi...ng that his camera failed to visually record the traffic stop but that he nonetheless observed the traffic stop and that the stop happened just the way he wrote it in his report. In our case, the officer testified that my client went through a stop sign without stopping. My client was subsequently arrested for Driving While Intoxicated and risked losing his driver's license. We set the case for an Administrative License Revocation hearing and my client's two passengers testified that the vehicle did stop for 7-10 seconds. They remembered this clearly because they had a brief discussion at the intersection about whether to turn left or right to travel home. In our case the officer's camera was literally pointed in the opposite direction of the intersection. We gathered other videos and documented 10 DWI cases where this same problem occurred.
This was not a one-time glitch. The ALR Judge found the evidence was not sufficient to suspend my client's driver's license. We set the case for hearing on the criminal case and the officer failed to come to court - twice. The DWI was dismissed.
We plan on holding hearings on any case this officer handled. In an age where recording police encounters is required, there is no excuse for this type of conduct.
DUI and DWI
Convictions Reversed on Appeal - Implied Consent - Unconstitutional
Apr 07, 2014
OUTCOME: Trial Court Reversed on Appeal
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.
DUI and DWI
DWI Total Refusal – 37 Minute Not Guilty
Oct 09, 2013
OUTCOME: Not Guilty
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.
Criminal defense
Not Guilty Habitual Aggravated Assault with a Deadly Weapon
May 20, 2013
OUTCOME: Not Guilty
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 Defend...ant 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.
Criminal defense
Dance Instructor Found Not Guilty in Sexual Assault
Oct 26, 2011
OUTCOME: NOT GUILTY
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.
Criminal defense
DANCE INSTRUCTOR NOT GUILTY IN ASSAULT
Oct 25, 2011
OUTCOME: Not Guilty
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 Defe...ndant'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.
Criminal defense
Mistrial Declared in Case of Former Stripper, Boyfriend Accused of Murder
Jun 13, 2011
OUTCOME: Mistrial
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."
