by Houston Criminal Defense AttorneyDoes the government need a warrant to obtain cell site location information?
Cell phones perform their wide and growing variety of functions by continuously connecting to a set of radio antennas called “cell sites.” Each time a phone connects to a cell site, it generates a time stamped record known as cell site location information (CSLI). Wireless carries collect and store this information for their own business purpose. A person’s phone number and phone records may then be used to pinpoint their location over a specific time period.
The question is whether the government may seize the phone records without fist obtaining a warrant supported by probable cause.
The answer as seen in Carpenter v. United States is yes.
In Carpenter, the government acquired the defendant’s phone records via a court order (as opposed to a probable cause warrant) to pinpoint his location and show he (or his phone) was at the location where several robberies took place.
On appeal, the United States Supreme Court, in a 5-4 decision ruled a person has an expectation of privacy in the wealth of information provided by cell sites, including their location, and the 4th Amendment applies. As such, absent a lawful warrant supported by probable cause, the phone records were obtained unlawfully and should not have been used at trial.
by Houston Criminal Defense AttorneyTemporary Harris County Court Locations
As the Harris County criminal justice system continues to evolve following Harvey, below are the current court locations and times for both county criminal courts at law (misdemeanor) and district criminal courts (felony).
by Houston Criminal Defense AttorneyDon’t take the Bait: Texas DWI Interlock Scams
DWI Texas Interlock and Breathalyzer Scams
You (or someone you know) has just been arrested for Driving While Intoxicated (DWI) in Texas. Prior to appearing for your first court date, a letter arrives in the mail looking like this:
Don’t take the bait. This letter is a scam, aimed at taking advantage of and profiting from persons accused of DWI.
Texas Interlock Scam 1: “SECOND notice”
Truth: This letter has ZERO implications for both your pending DWI case and your Texas driver’s license. Ignore it.
Texas Interlock Scam 2: “regain your driver’s license”
Truth: While it is true your license MAY be suspended after a DWI arrest, it also MAY NOT. You have fifteen (15) days from the date of your arrest to request a hearing on your license. Most Houston and Texas DWI Attorneys will do this for you. If you win this hearing your license will never be suspended, regardless of providing or refusing a breath/blood specimen or refused.
For more about the connection between DWI arrests and Texas Driver Licenses click here.
Texas Interlock Scam 3: “ARREST SEAL PROGRAM . . .”
Truth: Effective September 1, those who are convicted of a DWI MAY be eligible down the road to block the arrest record. Having a Texas interlock or breathalyzer can expedite that process. The problem with this letter, in this instance it was sent prior to a single court appearance and prior to any disposition (final result). In other words, there is no conviction and no court-ordered requirement for the letter’s recipient to install a Texas interlock.
Texas Interlocks and breathalyzers are big business. This letter, filled with scary words like “jail”, “probation”, and “suspensions” is a shady attempt by a company looking to make a quick buck off persons accused of DWI. Ignore it. Don’t take the bait.
by Houston Criminal Defense AttorneyHarris County Criminal Courthouse After Hurricane Harvey
Life at the Harris County Criminal Courthouse Post-Harvey
Hurricane Harvey has come and gone, but its impact still looms.
The Harris County Criminal Courthouse no novice to flooding took its worst hit yet during Harvey. Not only were the ground floors flooded, but the sewage pipes burst causing a sh*t storm (literally) within the building walls. Time estimates have the artist formerly known as the HCJC out of commission for nearly a year (if not longer).
As such Houston’s criminal justice system is now spread around three courthouses: the Family Law Center (misdemeanor and specialty courts), the Civil Courthouse Building (felony courts), and the Juvenile Detention Building (juvenile and the 182nd and 351st Criminal District Courts). While all felony courts begin at 8:30 am sharp, the misdemeanor courts are staggered with both 8:30 and 12:30 dockets.
Harris County Criminal Courthouse Locations
Harris County Misdemeanor Courthouse Docket Times
8:30 Docket Call:
County Courts at Law No. 1, 3, 7, 9, 11, 14, 15, and 16
12:30 Docket Call:
County Courts at Law No. 2, 4, 5, 6, 8, 10, 12, and 13
*check your bond papers for the court and time.
by Houston Criminal Defense AttorneyHigh Water: The Impact of Hurricane Harvey on Harris County Criminal Courthouses
High Water: The Impact of Hurricane Harvey on Harris County Criminal Courthouses
Harris County Criminal Courthouse
The Harris County Criminal Courthouse is a mess. Word on the street has the courthouse flooded past at least the twelfth floor. County engineers are currently assessing the building’s structural integrity and have yet to make a determination on its future.
Reality: The building needs to be blown up and rebuilt.
Harris County Criminal Court Settings
Per the Harris County District Clerk’s site:
“Due to natural disaster and the prolonged impact from recent flooding, the Harris County Criminal Justice Center will remain closed to the public during the week of September 4, 2017. This affects all cases in the Harris County District Courts Trying Criminal Cases (felony courts) and the Harris County Criminal Courts at Law (Class A or B misdemeanor courts)…
Unless specifically directed otherwise by the court, all cases originally scheduled for court appearances during the week of September 4, 2017, will automatically be rescheduled to appear in court exactly two weeks after the originally scheduled date.
At this time, regular dockets are tentatively expected to resume on September 11, 2017 (time(s) and location(s) to be determined).
Reality: the two-week reset is very optimistic and likely to turn into thirty day resets if not longer. Where these court proceedings will take place is still unknown. When Allison brought the Harris County Criminal Justice Center to its knees, vacant courthouses were used. Those courthouses are no longer available for use.
Jury Duty in Harris County
Per the Harris County District Clerk’s site:
Press Release: Jury duty has been canceled for the week of September 4, 2017. Individuals summoned by the Harris County District Clerk for jury duty during that week do not need to appear and do not need to reschedule.
Reality: Jury Duty for Criminal Cases will not resume for at least thirty days.
by Houston Criminal Defense AttorneyBlock Party: DWI Nondisclosure in Texas
Recently the Governor signed H.B. No. 3016 allowing those convicted of first time DWIs to have their record non-disclosed (blocked) provided certain criteria is met. The DWI nondisclosure law becomes effective September 1, 2017 and applies retroactively.
DWI Nondisclosure Laws: Blocking a DWI Conviction
I. DWI NONDISCLOSURE – RETROACTIVE:
The new section applies to DWIs convictions both before and after September 1, 2017.
Sec. 411.0716. APPLICABILITY OF SUBCHAPTER. (a) Except as provided by Subsection (b), this subchapter applies to the issuance of an order of nondisclosure of criminal history record information for an offense committed before, on, or after September 1, 2017.
II. DWI NONDISCLOSURE – PROBATION:
DWI nondisclosure if a person plead guilty and received probation.
Sec. 411.0731. PROCEDURE FOR COMMUNITY SUPERVISION FOLLOWING CONVICTION; CERTAIN DRIVING WHILE INTOXICATED CONVICTIONS. (a) This section applies only to a person placed on community supervision under Chapter 42A, Code of Criminal Procedure:
(1) following a conviction of an offense under Section 49.04, Penal Code, other than an offense punishable under Subsection (d) of that section; and
• “…other than an offense punishable under subsection (d)” means a DWI with a breath alcohol level of 0.15 or more and punished as a Class A misdemeanor. So those convicted of a DWI with a breath or blood sample at 0.15 or more are not eligible for a nondisclosure.
(b) Notwithstanding any other provision of this subchapter or Subchapter F, a person described by Subsection (a) whose community supervision is not revoked and who completes the period of community supervision, including any term of confinement imposed and payment of all fines, costs, and restitution imposed, may petition the court that placed the person on community supervision for an order of nondisclosure of criminal history record information under this section if the person:
• A person must successfully complete the probation and pay all fines and costs.
(1) satisfies the requirements of this section and Section 411.074; and
(2) has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.
• A person must not have any prior criminal history other than traffic offenses.
(c) A petition for an order of nondisclosure of criminal history record information filed under this section must include evidence that the person is entitled to file the petition.
(d) Except as provided by Subsection (e), after notice to the state, an opportunity for a hearing, and a determination that the person is entitled to file the petition and issuance of an order of nondisclosure of criminal history record information is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the community supervision.
(e) A court may not issue an order of nondisclosure of criminal history record information under this section if the attorney representing the state presents evidence sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order of nondisclosure.
• There must be no evidence of an accident with another person. The law seems to allow for single car accidents as long as there were not any passengers.
(f) A person may petition the court that placed the person on community supervision for an order of nondisclosure of criminal history record information under this section only on or after:
(1) the second anniversary of the date of completion of the community supervision, if the person successfully complied with a condition of community supervision that, for a period of not less than six months, restricted the person’s operation of a motor vehicle to a motor vehicle equipped with an ignition interlock device; or
(2) the fifth anniversary of the date of completion of the community supervision, if the court that placed the person on community supervision did not order the person to comply with a condition of community supervision described by Subdivision (1) for the period described by that subdivision.
• Time Requirements: 2 years from the date probation is completed if an interlock was ordered for at least six months and 5 years from the date probation is completed if there was no interlock ordered for at least six months.
III. DWI NONDISCLOSURE – CONVICTION:
DWI nondisclosure after pleading guilty to the DWI and receiving days in jail.
• Same requirements as above other than the waiting period is 3 years and 5 years respectively.
Sec. 411.0736. PROCEDURE FOR CONVICTION; CERTAIN DRIVING WHILE INTOXICATED CONVICTIONS. (a) This section applies only to a person who:
(1) is convicted of an offense under Section 49.04, Penal Code, other than an offense punishable under Subsection (d) of that section; and
(2) is not eligible for an order of nondisclosure of criminal history record information under Section 411.0731.
(b) Notwithstanding any other provision of this subchapter or Subchapter F, a person described by Subsection (a) who completes the person’s sentence, including any term of confinement imposed and payment of all fines, costs, and restitution imposed, may petition the court that imposed the sentence for an order of nondisclosure of criminal history record information under this section if the person:
(1) satisfies the requirements of this section and Section 411.074; and
(2) has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.
(c) A petition for an order of nondisclosure of criminal history record information filed under this section must include evidence that the person is entitled to file the petition.
(d) Except as provided by Subsection (e), after notice to the state, an opportunity for a hearing, and a determination that the person is entitled to file the petition and issuance of an order of nondisclosure of criminal history record information is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense for which the person was convicted.
(e) A court may not issue an order of nondisclosure of criminal history record information under this section if the attorney representing the state presents evidence sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order of nondisclosure.
(f) A person may petition the court that imposed the sentence for an order of nondisclosure of criminal history record information under this section on or after:
(1) the third anniversary of the date of completion of the person’s sentence, if the person successfully complied with a condition of the sentence that, for a period of not less than six months, restricted the person’s operation of a motor vehicle to a motor vehicle equipped with an ignition interlock device; or
(2) the fifth anniversary of the date of completion of the person’s sentence, if the court that imposed the sentence did not order the person to comply with a condition described by Subdivision (1) for the period described by that subdivision.
Overall this DWI nondisclosure law is a huge step in clearing those people who maybe made one mistake and have already served their punishment.
by Houston Criminal Defense AttorneyFreeing Tiger: Breaking Down the DWI/DUI Arrest – Part 1
DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are fact-dependent cases, where strategy can change in a heartbeat as new information is revealed.
With Tiger it is easy to assume the worst, however, under the law the only assumption must be that of innocence. In fact, Tiger is guaranteed it. If he chooses a jury trial, he is guaranteed the right to a fair and impartial jury strong enough to hold the State in check; willing to require each and every element of the alleged offense be proved beyond a reasonable doubt. In other words assume the best, even if it is Tiger.
In part one of this two-part series, we’ll look primarily at the element of operating. In part two we’ll break down intoxication.
To start in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
A person is intoxicated while operating a motor vehicle in a public place.
Because we know Tiger was found in his car on a public road, we’ll look past the elements of a person, motor vehicle, and public place.
But what about “operating”?
Skimming through available police and incident reports the issue of operating is in play and here is why.
Date: May 29, 2017
Time of Stop: 2:03 AM
Time of Arrest: 2:49 AM
Time of Breath Test: 4:22 AM
Time of Urine Test: Shortly after 4:35 AM
Officer Palladino was the first officer on the scene at approximately 0203 hours. In regard to operation, his report states:
- “ . . .dark colored sedan was not moving.”
- “The vehicle’s rear brake lights and right turn signal were still active.”
- “The vehicle was stopped in the right lane and its passenger side tires were partially blocking the bicycle lane . . . “
- “ . . . running vehicle . . .”
- “I advised the male to place the vehicle in park and turn the vehicle off. While speaking with the male Sergeant Hennessy arrived on scene . . .”
- “I again asked the male to put the vehicle in park and turn it off.”
- “Officer Imperiale arrived . . . and stood with Woods in the vehicle.”
Contrast with Sergeant Hennessy’s Report: “Officer Palladino . . . had located a disabled vehicle.”
See also Officer Imperiale’s Report: “Officer Palladino observed . . . a disabled vehicle . . .”
Why It Matters: While most people may believe driving while intoxicated means actually driving, courts have held proof of movement is not needed to meet the element of operating. For example, in Dornbusch v. State the court found sufficient evidence to establish the driver was operating a motor vehicle where officers found him passed out in the driver’s seat with the car running, in drive, headlights on, music playing and the curb being the only thing keeping the vehicle from moving. 262 S.W.3d 432, 433, 437-38 (Tex.App.-Fort Worth 2008, no pet.). On the other hand in Texas Department of Public Safety vs. Allocca the court found the motorist was not “operating” his vehicle while intoxicated after being found sleeping in the car with the front seat reclined, the car in park, the lights off, and the engine running. 301 S.W.3d 364 (Tex.App.-Austin 2009). The question becomes whether the State can prove the person “ . . .took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App.1995).
So can the State prove Operating?
Maybe. Maybe not. We need to see more. While Officer Palladino’s report states Mr. Woods was asleep behind the wheel with the car running, in drive, and lights on, Sergeant Hennessey’s report, who was on the scene prior to Mr. Woods placing his car in park and turning the car off only refers to the car as “disabled.” Officer Imperiale’s report mirrors Sergeant Hennessey’s, calling the car “disabled.” Look up the definition of disabled and you will find “out of action”, in other words not on.
We know per Officer Palladino’s report his dashcam video was turned on when he pulled up behind Tiger’s car.
- “I pulled behind the stopped vehicle blocking the right-hand southbound lane activating my overhead lights and Dashcam video.”
That video should show if the car was running, in drive, with the brake lights on or if the car was “out of action.” If the video or portion of the video goes MIA, then the State will have bigger problems.
Another question that needs to be answered surrounds the car’s damage. Per the police reports:
Officer Fandrey’s Report: The later investigation revealed fresh damage to the vehicle. Both driver’s`side tires were flat along with minor damage to both respective rims. There was also minor damage to the front driver`s side bumper and rear bumper, and the passenger rear tail light appeared to be out.
Officer Imperiale’s Report: The damage that was noted is as follows: driver’s side front and rear rims were damaged and their respective tires were flat, the front bumper on the driver’s side was damaged, and there were some white scrapes and scuff marks on the rear bumper, and the passenger side tail light appeared to be out.
Where did this damage occur? How? When? Are there any witnesses? Did Tiger call anyone? Text anyone? Was Tiger driving? Was he with someone else? There have been reports Tiger may not have been alone. Although the person of interest, Instagram model Laci Kay Sommers denies being with Tiger that night/morning.
If you had been in an accident or had two flat tires, wouldn’t you pull off to the side? Would you put your car in park? Would you turn the car off? It it was 2 AM, fresh off major surgery, would you fall asleep?
Before we assume the worst, before sponsors jump ship, before we publicly convict, we need to know much more.
Freeing Tiger: Part 2: Breaking down Tiger’s DWI/DUI Arrest – Intoxication
by Houston Criminal Defense AttorneyWinning at Voir Dire: 54 Steps to Jury Selection Success
Look at the photo above. What do you see?
A) Lava
B) An Ocean
C) A Desert
D) Mountains
E) Something Else
Ask others what they see. You will find people view this photo differently. People view this photo based on what they have experienced in life.
In the context of voir dire, think about a hung jury.
The jury has just sat through and seen all the same evidence and exhibits; has heard the same opening statements and arguments; and, has been read the same jury instruction from the court. Yet the decision makers were unable to unanimously reach the same conclusion.
Why?
Because just as our life experiences influence the way we see the photo above, our life experiences influence the way we interpret the evidence. Each juror’s conclusion, whether guilty or not, was made through their worldview. Life has stamped a colored imprint on the lenses of each juror’s eyes. This footprint has been strengthened over time and is unlikely to change in just thirty brief minutes.
This is why, contrary to what lawyers are often taught, a jury trial is won or lost the moment the jury panel walks into the courtroom, not at the conclusion of voir dire.
Once the trial lawyer understands that, they are better armed to find and strike any juror whose worldview is inconsistent with an acquittal. The ultimate goal of voir dire.
This is how.
Pre-Trial:
- Review applicable jury charge for potential challenges for cause.
- Review applicable law for potential challenges for cause.
- Identify the emotional (hot-topic) issues of your case.
- Develop a summary of your case.
- Bounce that summary off family, friends, and staff.
- Narrow-down the issues non-lawyers find important.
- Focus Groups: useful to discern what issues may be important to a jury, that wouldn’t be to an attorney.
- Focus Groups: not useful to predict what your jury panel is likely to believe because each panel will be different.
- Know the type of juror you are looking for in the box.
- Have a theory to your case.
- Draft relevant questions.
- Practice your questions until they become natural.
Trial (prior to voir dire beginning):
- Have help.
- Have a jury seating chart.
- Know how jurors are seated in the courtroom.
- Get the jury information sheets as soon as possible.
- Immediately assign prospective jurors a rating (Leader/Follower; For Me/Against Me)
- If the ratings suggest, request a shuffle.
- Write out jurors by name
- Engage the panel from the start. Begin voir dire by providing a context encouraging full participation.
- Begin with questioning “Leaders – Against Me.”
- Spend time with jurors who may actually be reached.
- Best practice is to have someone else take notes, so you can give your full attention to the panel.
- Don’t explain things to the prospective jurors; let them explain things to you.
- Refer to jurors by their last name.
- Don’t argue with a potential juror: this is the quickest way to ensure individuals will not express their strongly held opinions.
- Ask “Loaded” questions. “People have strong feeling about the burden of proof in a criminal cases. Some people would require the state to prove their case beyond a reasonable doubt. Other people feel beyond a reasonable doubt is to too high a burden. They would require the State to prove their case by clear and convincing evidence.
- Ask “Winning” questions, “Can you think of some reasons why a child may lie? Winning questions allow the jurors to provide pertinent answers to the theory of your case.
- Refer to answers from jurors throughout the course of your trial (e.g. opening, cross, closing, etc.)
- No legal words.
- Don’t be afraid of unfavorable answers or “poisoning” the panel.
- Loop unfavorable answers for cause with “Who has a different opinion from {juror}?”
- Loop favorable answers for cause with “{Juror} has said . . ., who has a similar opinion?”
- “Tell me more about that . . .”
- “Is it fair to say . . . “
- Ignore the good.
- Identify and engage the bad.
- “Can you think of any other reasons . . .”
- Thank jurors for their honest opinions.
- Protect the record. Identify juror’s head nods and answers by name.
- When challenging for cause (at bench) remind the juror what he or she previously said.
- Follow up with “Are my notes accurate?”
- Nail the strike down: “Is it fair to say that regardless of the law, the facts, or the judge’s instructions that you . . .”
Preemptory Strikes:
- Ask all decisions makers (see #12) to make a list equal to the number of preemptory strikes. No discussion at this point.
- Compare numbers.
- Use a preemptory strike on any juror who shows up on every list.
- If strikes remain, discuss.
- “Leaders – Against You” are struck first.
- “Leaders – Questionable” are struck second.
- “Followers – Against You” are struck third.
Additional Tips:
- Rid of jurors that have a point of view inconsistent with an acquittal in your case.
- Understand jurors make up their mind and then justify their decision.
Happy jury selection and good luck.