Friday, October 23, 2015


       It's tough as a criminal defense lawyer who defends the Constitution each and every day to understand how a legislature composed of legislators not versed in criminal law, can effectively come up with laws that affect the safety of every Texan.  Every Texan wishes to live in the security of their own home, free from the intrusion of not only criminals, but of the government as well.

       This legislative session was no different.  The legislature, devoid of people  of criminal law experience, passed yet additional set of laws that do not make us safe nor secure.

       Take for example, Penal Code Section 43.26: Possession or Promotion of Child Pornography.  Under the new revisions, primarily HB 2291, this change will actually lower the punishment range of repeat offenders who have been convicted of two prior offenses from 25-99 years (under the standard enhancements under Art. 12.42(d)), to 5-99 years under the controlling provisions of the new bill.  In other words, the inexperienced ones in the legislature have given us less potential punishment for those persons keeping and peddling child pornography.  What were they thinking.


Saturday, December 6, 2014



This past eight months saw the most trials in such a short time I've had in my career.  I have had eight (8) Felony jury trials in exactly eight months.  Four (4) of those trials took place in Williamson County, four (4) in Travis County.  Of those eight trials, six faced the maximum sentence of 99 years or life. Three of those were habitual, with a minimum of 25 years.  Two Defendants faced a maximum of 10 years.

It's hard to declare whether a trial result is a "victory" or not. Different factors such as the pretrial offer, overall exposure to prison, and facts of the case usually dictate whether the effort in preparation and performance in trial paid off.  What follows are quick summaries of the trials, the result, and where it ranks on the victory meter.  Many thanks to all those who helped.

Williamson County 368th Districty Court
Capital Murder
State v Crispin Harmel
Length:  8 days
Penalty Range:  Automatic Life
Result:  MISTRIAL  

This was the only trial this year that I did not conduct the jury selection.  However, it was a pleasure to participate on the team with Ryan Deck (lead attorney) and Scott Magee.  Filed as a Capital murder, it involved the allegation that the Defendant followed a young woman from a Walmart to her car and left with her.  She was found the next morning in her car, deceased.  However, witnesses had seen her out of car and alive the next morning prior to her being found lifeless.  A mistrial was declared after it was found the prosecution did not supplement discovery with crucial information.
Rank:  Temporary Victory for the Defense

Williamson County 26th District Court
State v Rex Nisbett
Length:  9 days
Penalty Range:  5-99 Years/Life
Result:  CONVICTION 42 Years

This trial was a 22 year cold case murder.  There was no body in this case.  The case involved DNA, testimony by witnesses recalling from years ago, and was comprised entirely on circumstantial evidence.  There are certainly several issues for appeal. This will be a case that will continue to be watched and will certainly be of interest to all when the decision of the Appeals Court(s) rule.
Rank: Temporary Victory for the Prosecution

Travis County 147th District Court
Attempted Sexual Assault
State v Christopher Frazier
Penalty Range:  2-10 Years
Length:  2 days
Result: CONVICTION 4 Years

This case was based on the allegation that Mr. Frazier attempted to sexually advance on a person in a truck in broad daylight without that person's consent while the partner was buying ice cream.  The jury heard from three witnesses before deciding.  The assessed penalty was agreed by the parties.
Rank:  Moderate Victory for Prosecution

Travis County  299th District Court
Possession of a Controlled Substance (Habitual)
State v Jonas Smith
Penalty Range:  25-99 Years/Life
Length:  2 days

Mr. Smith was arrested for assaulting his girlfriend with a knife.  After transporting her to the emergency room, Mr. Smith was arrested for the assault and in the ensuing search of his person (on videotape), PCP was found on his person.  After reviewing the videotape of his arrest and the finding of the drugs in his pocket, the jury acquitted him (I'm not kidding).
Rank:  Incredible Victory for Defense

Travis County   County Court #4 (Felony Jurisdiction)
Assault Family Violence Enhanced
State v Christopher Porth
Penalty Range:  2-10 Years
Length:  4 Days

The trial involved some allegations against Mr. Porth involving his girlfriend.  After 2 days of testimony, the jury deadlocked 6-6.  There was no chance of reconciliation amongst the jurors. The case was re-indicted on a First Degree. The case was resolved for back time on a lesser charge of a State Jail Felony.
Rank:  Moderate Victory for the Defense

Travis County  299th District Court
Aggravated Assault with a Deadly Weapon
State v Jonas Smith
Penalty Range:  25-99 Years/Life
Length:  4 days

Mr. Smith was tried on the assault of his girlfriend with a knife.  After considering the evidence including lengthy testimony on the injuries, the jury concluded he did this beyond a reasonable doubt.  However, they could not agree on punishment.  11 jurors agreed on 37 years, 1 would not compromise from 36 (No, I'm not kidding).  The case was resolved for 27 years.
Rank:  Moderate Victory for the Defense

Williamson County  277th District Court
Aggravated Kidnapping, Assault Family Violence Enhanced x 2 (Habitual)
State v Crispin Robledo
Penalty Range:  25-99 Years/Life
Length:  4 days

The Defendant agreed to a sentence of 10 years.  This trial featured some initial hurdles. But as the case progressed, it was clear the prosecution had a growing concern with witnesses and strategy.  In the end, the jury may well have hung, but the result was clearly good for the client.  There were too many unknowns for both sides.
Rank:  Victory for the Defense

Williamson County 26th District Court
Aggravated Assault with a Deadly Weapon, Serious Bodily Injury, Family Violence
State v Everton Roxroy Bailey
Length:  4 days
Penalty Range:  5-99 Years
Result:  Conviction 37 Years

The Defendant was convicted of pouring boiling water on his wife.  The pretrial offer was 40 years, then 30.  I was the third lawyer on the case.
Rank:  Moderate Victory by the Prosecution

Other notable cases involved a swat standoff, various drug cases, and police pursuits.  But 2015 will provide me plenty of trial experience as well. There will be two additional murder trials.

It was a heck of a year, but the fun ain't over yet.

Thursday, July 31, 2014

VICTORIES: Some Clients Never See Them (Until Later)

I like to go to trial.  Like Walter White said in the finale of the series Breaking Bad, "I did it because I liked it.  I was good at it."

But trials are not about the lawyer.  Trials are about what is best for the client/defendant.  It is a rare mix of circumstances that send a client to trial:  the innocence of the defendant; or the desire to extract a better resolution from strangers than a plea offer from the prosecutors; and the willingness to gamble in an imperfect system designed to seek justice based on unpredictable perceptions, beliefs, and biases.

Trials are intense for all of the parties.  The witnesses questioned by skilled lawyers, the lawyers who have to follow the rules which govern the procedure (unless the lawyers choose not to follow the rules), the victims who are wronged and sometimes traumatized, and the defendant who is unsure of his future and fate.

But sometimes trial is not the best option.  I plead a client  to 10 years in prison this week 45 minutes before a jury was going to decide his fate on three felonies, all of which were enhanced to 25-99/life.  At the moment that reality sets in for these clients and they take a deal, the fact that I would have made more money in trial dissipates and the realization that my advice spared him decades of his life behind bars makes it worth the effort.

He probably won't realize the bullet he dodged until later, but only then will he recognize that he would be better off than the other option of dying in prison.