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Jul 27
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The Big Needed Change To Grand Jury Selection

By Grand Jury

Years ago, I was employed as an assistant district attorney in a DA’s office out in West Texas. From time to time, I would oversee the grand jury and the presentation of felony cases for indictment. At the first of every month, the county would summon potential jurors from a random selection process to serve on the grand jury. The first fourteen (twelve to serve as grand jurors and two as alternates) who were not disqualified by statute were seated on the grand jury.

Those fourteen citizens were always different. Different ethnicity. Different gender. Different religions. Different socio-economic status. Most importantly, different political parties. The goal was to create an impartial jury of peers to review the evidence in criminal cases and determine whether probable cause existed for indictment.

You can imagine my surprise when I moved to the DFW area and discovered jurisdictions here which used the other method of selecting grand jurors.

Article 19.01 of the Texas Code of Criminal Procedure allows the “pick a pal” method wherein judges can hand pick “jury commissioners” who individually select citizens to serve on the grand jury. As you can imagine, there has been a serious influence of politics on the grand jury process a result of this practice. It’s hard to have an impartial grand jury when everybody comes from the same political party and economic sector of society.

Fortunately, House Bill 2150 was signed into law last month. On September 1, 2015, the “pick a pal” process will no longer be an option. Instead, the newly revised Article 19.01 will require all jurisdictions to apply the random selection process to the grand jury selection process.

This change is long overdue. An accused’s right to an impartial jury should be the same at the grand jury as it is at trial.

Jul 22
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Winning By Losing in a Jury Trial

By Jury Trial

Let me make an admission…sometimes we lose at trial. There, I said it. We don’t win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.

It begs the question, “Why take the case to a jury trial if you suspect you are going to lose?” Here’s why…because in many situations, going to trial is the only way to get a good result.

For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.

After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.

We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn’t gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.

In criminal defense, a moral victory is still a victory and sometimes you win by losing.

Jul 21
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Purposeless Pacing Not Evidence of Prostitution

By Prostitution

Prostitution Case Overturned for Lack of Reasonable Suspicion or Probable Cause | Fort Worth Prostitution Defense Attorneys

– San Antonio 4th Court of Appeals (2015)
At approximately 9:00 p.m., San Antonio police officer Christopher Connelly and his partner observed Shamar Johnson “pacing” on the sidewalk in a dimly lit area near two gay clubs. Officer Connelly’s testimony differs from Johnson’s in some respects, but there is general agreement on the relevant facts. The area was known for gay prostitution. Based on their belief that Johnson had no reason to be loitering in the area, Officer Connelly and his partner pulled up to Johnson in their car, exited the vehicle and began questioning Johnson.

When Johnson saw the car, he stopped. According to Officer Connelly, Johnson appeared to be nervous and put his hands in his pockets. Johnson said that the presence of the officers on either side of him was intimidating. Officer Connelly instructed Johnson to put his hands on the patrol car and asked Johnson if he had anything illegal in his possession. Again, Johnson said that he did not believe he could leave and had to do exactly what the officers said. Johnson told the officers they could search him. The officers found a plastic bag containing cocaine and arrested Johnson.

Johnson moved to suppress the evidence the officers found because the detention and search were unlawful. The trial court found Officer Connelly’s testimony “credible” and denied the motion to suppress. Johnson subsequently struck a plea bargain and pled no contest to the charge of possession of a controlled substance.

Johnson appealed the trial court’s decision. Consistent with the standard for reviewing a trial court’s action on a motion to suppress, the Court of Appeals deferred almost entirely to the trial judge, who was in the best position to assess credibility of witnesses, regarding the facts of the case, but made its own determination regarding how the law applied to the facts.

In a four-step analysis, the Court of Appeals found the officers’ encounter with Johnson constituted an unlawful seizure and the motion to suppress should have been granted.

(1) Both sides agreed that the officers’ encounter with Johnson was not consensual. The State admitted there was no support to argue the search was consensual.

(2) The state argued the officers’ detention of Johnson was based upon reasonable suspicion, which requires the existing of specific facts leading an officer to conclude that a person has committed or is about to commit a crime. The State cited the facts that Johnson was in a dimly lit area known for male prostitution and Johnson’s “loitering” looked like someone who was engaged in prostitution. The Court of Appeals disagreed, concluding that being present in a dimly lit area, even an area known for prostitution, does not provide reasonable suspicion that an individual is a prostitute. Because the officers had no reasonable suspicion to detain Johnson, Johnson’s detention was a violation of the Fourth Amendment.

(3) The Court considered whether Johnson’s consent to search was an act of free will. The court noted the consent occurred shortly after Johnson was told to place his hands on the car and there were no intervening circumstances to lessen the “taint” of the improper detention. Although nothing indicated the officers intended to commit an unlawful detention, the Court found Johnson’s consent was not an exercise of his free will and therefore did not remove the taint of the unlawful detention.

(4) After determining the trial court should have granted the motion to suppress, the Court of Appeals considered whether that error made any difference in Johnson’s punishment. Although Johnson accepted a plea bargain rather than go to trial, the Court of Appeals believed the denial of the motion to suppress gave the State leverage in the process and may have contributed to Johnson’s giving up his right to a trial in order to obtain a favorable punishment recommendation.

Many people believe they are required to cooperate in any encounter with police until the police officers terminate the encounter. However, Johnson v. Texas makes it clear police officers do not have unlimited authority to detain an individual unless they have a reasonable suspicion that a crime has been or is about to be committed. While police officers may see reasonable suspicion where others would not and trial courts may agree, higher court decisions have set a standard for reasonable suspicion which limits police ability to detain citizens who, like Shamar Johnson, just appear to be in the wrong place at the wrong time.

Jul 18
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Intoxication Assault, Felony DWI, and Double Jeopardy

By DWI

DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

The Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual–intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person “by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”  Felony DWI occurs when a person “is intoxicated while operating a motor vehicle in a public place” and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an “elements” analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI’s requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them “specific attendant circumstances” that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word “intoxicate” in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson’s argument (same offense). However, the court considered the factors supporting the state’s position (separate offenses) as “more substantial.” In the court’s view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson’s right to protection from double jeopardy.

Jul 08
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“Everybody Out!” Court Rules the Right to a Public Trial Forfeited

By Public Trial

The Sixth Amendment guarantees a criminal defendant’s right to a “public” trial. The Texas Court of Criminal Appeals recently confronted the question of whether and under what circumstances a criminal defendant may lose that right.

Bobby Joe Peyronel was convicted of a criminal offense. During a break in the punishment phase of Peyronel’s trial, an unidentified female supporter approached a juror and asked how it felt to convict an innocent man.

Fearing juror intimidation and apparently unable to identify the woman, the prosecutor asked the judge to exclude all female members of Peyronel’s family from the courtroom. Peyronel objected, arguing that granting the request would exclude Peyronel’s wife and daughter and give the jury the impression Peyronel had no supporters. (The CCA’s decision did not explain why the judge did not just question the juror, identify the woman who made the comment, and exclude her from the courtroom.)

In a possible overreaction, the judge ordered all witnesses and observers out of the courtroom. The punishment phase of the trial proceeded with witnesses waiting outside the courtroom until time to testify.

Peyronel appealed, arguing a violation of his constitutional right to a public trial. No one disputed that right. However, the State argued that because Peyronel did not ask the trial judge to do anything and did not inform the judge that he planned to appeal based on an alleged Sixth Amendment violation, Peyronel had forfeited his public-trial right.

The Court first considered whether the right to a public trial is mandatory (must be enforced no matter what a defendant says or does), waivable (can be knowingly and intentionally relinquished by a defendant), or forfeitable (can be given up if a defendant does not insist on enforcement). The court briefly reviewed cases from other jurisdictions and concluded the public-trial right could be forfeited.

The Court then considered whether Peyronel had forfeited his public-trial right. Although Peyronel objected to the trial judge’s order to clear the courtroom, the CCA did not consider that to be the equivalent of asserting a violation of his constitutional right. The court said there was no “magic language” Peyronel needed to use to assert the violation, but he at least had to specifically state what he wanted the trial judge to do and upon what grounds his request was based. The CCA determined Peyronel did not meet that standard and, as a result, forfeited his right to a public trial.

Read the full opinion: Peyronel

In a strong dissent, Justice Johnson noted that the prosecutor’s request was just to exclude female family members from the courtroom and Peyronel objected, arguing that such a broad action would remove his wife and daughter. Justice Johnson said that objection was sufficient on its own and it also implied Peyronel’s objection to a complete exclusion.

Justice Johnson compared the situation to buying an appliance. If a customer has a two-foot-wide space for an appliance and a seller tries to sell an appliance that is two inches wider, the customer will object. By objecting to that appliance, Justice Johnson said, the customer is also making it clear that he would object to the seller substituting an appliance even wider than two feet, two inches. According to Justice Johnston, when Peyronel objected to the exclusion of female members of his family because it was too broad to accomplish the intended purpose, that also constituted an objection to the exclusion of even more people and made it clear to the trial judge that his order to clear the courtroom was too broad as well.

Peyronel v. Texas is interesting in at least two respects. Anecdotally, it seems odd that neither the majority nor the dissenters were troubled at all by the fact that the trial judge went beyond the prosecutor’s request and ordered everyone from the courtroom rather than trying to identify the woman who was the object of concern and removing her.

More fundamentally, the principle that some constitutional rights can be waived is well established; for example, Miranda rights are frequently waived. But, the court’s opinion suggests that a defendant can lose his constitutionally protected public-trial right by not speaking up, or, presumably, by speaking up but not speaking loudly or eloquently enough.

Jul 03
Love1

Appeals Court Reverses Conviction in 11 Person Jury Trial

By Jury Trial

12 Persons Required to Serve on Texas Felony Jury Trial – Fort Worth Trial Lawyers

A felony jury trial in Texas requires 12 jurors (with limited exceptions). The defense can waive that requirement under certain circumstances, and jurors can be excused under certain circumstances. But generally, a felony jury panel must have 12. Below, we discuss a case in Denton County where the jury started with 12 and then went to 11 because a juror could not understand the English language well enough to serve.

Stillwell v. State – Opinion issued by the 2nd District Court of Appeals (Fort Worth) on May 28, 2015

Appellant, Eben Stilwell was convicted in the 367th District Court in Denton County by an 11-person jury of indecency with a child and sentenced to 12 years in prison. A jury of 12 was originally empaneled but after three days of testimony, one of the jurors came forward and informed the court that he was having difficulty understanding the proceedings. The juror primarily spoke Spanish and was having difficulty following the proceedings because they were in English.

During the conversation between the judge and the juror, the juror repeatedly said “I understand a little bit” or “I don’t understand.” Both the defense and state agreed that the juror did not adequately understand the English language and was not completely following what was going on in the courtroom.

The prosecution and defense disagreed, however, as to the legal basis for the juror’s removal. The state urged that juror be deemed “disabled” under Tex.Code Crim. Proc. Ann. art. 36.29(a), which would allow the trial to proceed with 11 jurors over defense objection. The defense argued that because the juror was never able to serve, he was disqualified and a trial using 11 jurors could only proceed with the defendant’s consent. The defendant did not consent to continuing the trial with only 11 jurors. The trial court followed that state’s recommendation and dismissed the juror as disabled, continuing the trial with only 11 jurors.

The 2nd District Court of Appeals (Fort Worth), Justice Sudderth writing the opinion for the court, held that the court could have allowed the juror to remain on the jury because the right to have him excluded due to his inability to understand English had been forfeited. It is always the attorneys’ duty to determine that capability and fitness of the jurors during voir dire. Neither party inquired as to ability to understand the English language.

But, once the court determined that the juror should be dismissed, consent of the defendant was required to proceed with 11 jurors. Because appellant did not agree to proceed with 11 jurors, a mistrial was required. The lower court was reversed.

Fort Worth Criminal Trial Lawyers

If you or a loved one have a criminal case in Fort Worth, you need to seek the best criminal defense lawyer to represent you and protect your rights at trial. Call our attorneys today for a Free Consultation of your case.

Jul 01
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Endless Justifications for Warrantless Search & Seizure

By Search & Seizure

Warrantless Search & Seizure Upheld Under Exception to the Constitutional Warrant Requirement

The Fourth Amendment to the U.S. Constitution protects people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable search & seizure.”  Most people believe that a search without a warrant is an automatic violation of the 4th Amendment.  Not so.  Through years of criminal cases, the courts have crafted numerous exceptions to the warrant requirement.  Below is a case brief from a recent federal case in which several of these exceptions to the warrant requirement were employed against the defendant.

United States v. Conlan – U.S. Court of Appeals for the 5th Circuit

Over a one-year period, defendant Conlan sent a series of threatening emails and text messages to a woman he dated as a teenager. The police issued an arrest warrant for Conlan for harassment, and learned that he was registered in a local motel. After the officers saw Conlan’s vehicle in the parking lot, they had the motel manager call Conlan to the front desk where they arrested him. When an officer asked Conlan if he wished to get anything from his room before being taken to the police station, Conlan said yes. Officers accompanied Conlan to his room and retrieved his wallet. While in Conlan’s room, the lead investigator saw a laptop computer and two cell phones lying on the bed and ordered another officer to seize them. A subsequent search revealed the cell phones had been used to call the victim’s workplace and obtain directions to her house, and the laptop used to conduct Internet searches for the victim’s name. The officers also searched Conlan’s car, which was located in the motel parking lot and seized a loaded handgun and riot stick. 

A trial, Conlan filed a motion to suppress the items seized from his motel room. By having the manager summon him to the front desk, Conlan argued the officers created the situation where he would be without his effects and forced into requesting a return to his room. Conlan also argued the officers unlawfully searched his car without a warrant.

First, the court held that if the officers wanted access to Conlan’s room, they could have executed the arrest warrant there. In addition, the court found there was no evidence to suggest the officers pressured Conlan into returning to his room. Finally, when Conlan told the officers he wanted to return to his room, the officers did not violate the Fourth Amendment by accompanying him there.

Next, the court held the officers made a lawful plain view seizure of Conlan’s cell phones and laptop computer because the incriminating nature of these items was immediately apparent. The incriminating nature of an item is “immediately apparent” if an officer has probable cause to believe that the item is either evidence of a crime or contraband. Here, the lead investigator who ordered the seizure of Conlan’s laptop and cell phones had first-hand knowledge of Conlan’s harassing electronic communications; therefore, he had probable cause to believe these items constituted evidence of the crime of harassment.

Finally, the court held the warrantless search of Conlan’s vehicle was lawful. Before locating Conlan at the motel, the officers knew that Conlan had recently driven his car past the victim’s house. This act formed part of Conlan’s course of criminal conduct and provided the officers with probable cause to believe the vehicle was evidence and an instrumentality of the crime of harassment. Consequently, the officers were entitled to impound and search Conlan’s vehicle.

Warrantless Search Defense Attorneys – Fort Worth, Texas

If you believe that you have been the victim of an unlawful search and you are currently under investigation or charged with a crime in Texas, contact a criminal defense attorney today. Barnett Howard & Williams PLLC offers free consultations on all criminal cases.

Jun 22
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Are “Facebook Threats” Actually Threats Under Federal Law?

By Threats

Everyone seems to use social media today. Videos of kittens and puppies and comments about people or events are common. However, some use of social media involves threats by a user against others. The U.S. Supreme Court recently considered a case regarding how far such threats can go without violating the law.

Anthony Elonis was a Facebook user. When his wife left him, Elonis began posting violent, self-composed “rap” lyrics. Elonis’s posts included references to co-workers, his wife, law enforcement, an unidentified kindergarten class and an FBI agent who visited his home. Based on these Facebook posts, the Government charged Elonis with violating a federal statute, referred to as 875(c), that criminalizes communication that contains a threat to harm another person.

Elonis’s defense attorney moved to dismiss the charges because Elonis had not actually intended to threaten anyone. The court denied the motion, holding that the Government was not required to prove that Elonis actually intended to make a threat; it must only prove that Elonis intended to make the communication. At trial, the Government called several witnesses who testified they viewed the posts as serious threats.

Elonis argued for a jury instruction requiring the Government to prove Elonis “intended to communicate a threat.” Instead, the judge instructed the jury that a true threat requires only that the defendant make a statement that a reasonable person would interpret as a serious expression of intent to harm or kill an individual.

Elonis was convicted on four counts. He appealed to the Third Circuit Court of Appeals, which affirmed the lower court’s verdict. Elonis then appealed to the Supreme Court.

No one disputed Elonis had posted the Facebook entries. The issue was whether Elonis’s posts contained any threats.

The language of 875(c) contains no provision regarding intent or state of mind. Elonis argued that every definition of threat requires an intent to harm. The Government argued that the use of “intent” language in sections surrounding 875(c) demonstrated that Congress did not intend to impose an intent standard in 875(c).

The Court rejected both arguments, concluding that 875(c) did not address the issue of “intent” or “mental state” at all. The Court looked elsewhere for an answer and found one in decisions in previous cases: Only conscious wrongdoing can be prosecuted as a crime. When a statute includes no provision regarding the required mental state, the Court said it implies only the state of mind which is required to distinguish wrongful conduct from conduct that would otherwise be innocent. For example, if an individual robs a bank, even under a good-faith belief the money was his, the “forceful taking” (stealing) does not constitute “otherwise innocent conduct.” The Court said the Government’s position in this case would punish a defendant who takes money without force, believing it to be his.

The court characterized the Government’s position as a standard of negligence, which asks what a reasonable person would do in the situation. The Court said a negligence standard had been rejected in criminal statutes, stating “what [Elonis] thinks does matter.” On that basis, the Court overturned Elonis’s conviction.

In a separate opinion, Justices Alito and Thomas took issue with the Court holding that a negligence standard was insufficient while not determining what standard would be sufficient. Judge Alito argued for a recklessness standard (acting in conscious disregard of the risk). Justice Thomas chastised the majority for rejecting the opinion of nine out of eleven Circuit Courts of Appeals and leaving nothing in its place. Justice Thomas did commend the majority for not imposing an intent-to-threaten requirement but believed the Court should have gone further and adopted the negligence or general intent standard put forward by the Government.

Elonis v. U.S. raises more questions than it answers. Clearly, something more than making a threatening statement with knowledge of what it says is required to violate federal law. But how much more? Was Justice Alito correct that making the statement with no consideration of its effect on the recipient is enough? Or was Elonis right that an individual must affirmatively intend the communication as a threat for it to be illegal? Setting aside moral or ethical concerns, until this question is answered, social media users should be cautious of making statements threatening other individuals, serious or not.

Jun 17
Love1

The Confrontation Clause and Testimony From a Supervising DNA Analyst

By Confrontation Clause

As Fort Worth criminal defense attorneys, we often encounter confrontation issues during trial. The Confrontation Clause of the Sixth Amendment gives a defendant the right to confront witnesses against him. This provision prevents admission of a “testimonial” statement–a formal statement similar to trial testimony–unless the person who made the statement can be cross-examined or is unavailable but was previously cross-examined (in a deposition, for example). In the absence of cross-examination, a criminal defense attorney in Fort Worth would object to admission of the statement as evidence.

In Paredes v. State, the Court of Criminal Appeals considered how the Confrontation Clause applies to DNA testimony based on computer-generated data obtained through batch DNA testing. During a robbery, two victims were shot and killed. Jovany Paredes asked Jessica Perez to wash the shirt he was wearing during the robbery. Instead, Perez gave the shirt to police, who sent it to a lab for DNA testing. DNA from blood on Paredes’s shirt matched one of the victims.

At trial, Robin Freeman, the lab director, explained that DNA testing involves four analysts. The fourth analyst interprets raw data from a computer to determine whether there is a DNA match. In Paredes’s case, Freeman herself compared the DNA profile from the blood stain to Paredes’s DNA profile. Freeman testified that she did not personally observe each of the analysts performing the first three steps but that any problem in the analysis would have been obvious. Freeman testified that the ultimate opinion was hers and that she was testifying regarding her opinion.

Paredes’s defense attorney objected, arguing that he was entitled to cross-examine the other analysts. The State said those analysts just took “physical stuff,” placed it into instruments and applied chemicals. Freeman, the State said, was the one who did the interpretation that was presented to the jury. The judge agreed with the State, and Paredes was convicted of capital murder.

The Court of Appeals affirmed, holding that Freeman’s testimony did not violate the Confrontation Clause. After the Court of Appeals decision, the CCA decided in Burch v. State that admission of a drug test lab report did violate the Confrontation Clause because the testifying witness stated that the report was a “surrogate” for the technician who performed the test. Paredes appealed based on Burch. The CCA vacated the Court of Appeals decision and remanded the case to consider whether Burch affected the decision in Paredes.

The Court of Appeals made the same decision the second time, distinguishing Paredes, where the lab director had knowledge of the tests used and conducted the crucial analysis, from Burch, where the testifying lab supervisor had not observed or performed any part of the drug test or its analysis. Because Paredes’ attorney had the opportunity to cross-examine the person who conducted the actual analysis that linked him to the crime, Paredes’ Confrontation Clause rights had not been violated.

Paredes appealed to the CCA again. The Court reviewed three U.S. Supreme Court cases involving forensic reports. In the first two cases, the Supreme Court had found the forensic reports inadmissible because only a “certificate of analysis” was presented as evidence and a testifying witness had not actually performed the test.

In the third case, a DNA case, an outside forensics specialist testified that the lab-created DNA profile matched the defendant’s DNA profile. The Supreme Court held that this evidence did not violate the Confrontation Clause.

Based on the Supreme Court cases (Melendez-Diaz and Bullcoming) and the decision in Burch, the CCA ruled against Paredes. The CCA relied on the fact that Freeman, the testifying witness, had actually performed the crucial analysis and had testified to her own conclusions. Further, the lab director had testified regarding the quality assurance system at the lab that would alert the director if the test were done improperly. The CCA also distinguished this case because Freeman had relied on raw, computer-generated data in reaching her conclusions, rather than relying on another analyst’s report. Because Paredes was given the opportunity to question Freeman regarding her opinion, the CCA held that his Confrontation Clause rights were not violated.

A Fort Worth criminal defense attorney whose client is facing forensic expert testimony will carefully consider Paredes. Challenges to DNA evidence may be more difficult, particularly if the testifying witness is the individual who actually translated the raw data into a conclusion regarding a DNA match. A criminal defense attorney in Fort Worth will carefully monitor the application of Paredes to cases with similar, yet different, facts.

Jun 17
Love5

Tarrant County’s “No Drop” Policy on Family Violence Cases

By Domestic Violence

How Do I Drop a Family Violence Case in Tarrant County?

In our practice as criminal defense lawyers, we often get calls about Family Violence (Assault of a Family Member) cases. These cases typically result from an argument that got out of hand, wherein one party called the police to help diffuse the situation, not knowing that the police would take someone to jail. Many times there seems to be a bit of confusion regarding whether the “victim” of the alleged assault can “drop” the case after the other person is arrested and charged with Family Violence.

In Fort Worth, the Tarrant County District Attorney’s office has a “No-Drop Policy” on Family Violence cases. The No Drop Policy basically means is that once the case is filed with the District Attorney’s office, it is NOT the alleged victim’s choice whether to drop the charges. It is entirely in the prosecutor’s discretion how to handle the case if the victim does not want to go forward.

Despite the No Drop Policy, there are things that an alleged victim can do to express his or her desire that the case not be prosecuted. This begins with the Alternatives Class offered through Safe Haven. Before the District Attorney’s office will allow an alleged victim to sign an Affidavit of Non-Prosecution, they require that the alleged victim attend this 4-hour class.

After the alleged victim attends the Alternatives Class at Safe Haven, he or she may then elect to speak with the victim coordinator at the District Attorney’s Office. In this interview, the alleged victim will be allowed to talk with the victim coordinator and tell them why they believe the case should not be prosecuted. This is also the time in which the alleged victim will sign the Affidavit of Non-Prosecution.

These steps can go a long way in achieving a favorable outcome on domestic violence cases. If you or a loved one needs help navigating these options, please call us today. We handle Family Violence cases on a daily basis and have a proven track record of good results. Some helpful numbers are contained below.

Alternatives Class at Safe Haven – (817) 536-5496

Tarrant County Victim Coordinator – (817) 884-3535


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