CAN A NON-CITIZEN VOTE?

NO!

The penalties for non-citizens attempting to vote in a country's election can be severe, especially in countries like the United States. In the U.S., for example, non-citizens who vote in federal elections can face criminal charges, which may include:

1. Fines: Non-citizens who unlawfully vote may be fined under federal law.
2. Imprisonment: Convictions can result in imprisonment for up to five years.
3. Deportation: Non-citizens found guilty of voting illegally may also be deported and barred from reentering the U.S.
4. Permanent Bar from Citizenship: In some cases, attempting to vote may permanently disqualify a non-citizen from becoming a U.S. citizen in the future.

SPECIAL EDITION-TRIAL DOGS, COVID AWARDS, AND ZOOM HEROES 2019-20

It's been quite a year for Justice in Travis County.  With the changing of the guard at the District and County Attorney's office, in 2021 there will be changes.  But before we plod forward, let's recognize the efforts from this past year.  Some of these awards will be pre-covid, some after.  The committee has spoken:

ANTORCHA DE JUSTICIA AWARD

Tom Weber (Posthumous)

Ira Davis (Posthumous)

TRIAL DOGS 2019-20

Ariel Payan

Russ Hunt

Margaret Chen Kircher

Steve Brand

Victoria Winkeler

Raymond Espersen

Richard Jennings

Andrea Austin

Victor Arana

Leonard Martinez

William Browning

Rob Shepherd

Brian McConnell

Kleon Andradis

WORKHORSE AWARD

Charles Popper

Cheryl Hindera

COVID AWARDS [Crisis Management]

Bradley Hargis -Technology Award

The Clerk's Office -Work Ethic Award

The Techshare Administrators - Information Technology Award

ZOOM AWARDS 2020

BEST QUOTES

"You're on mute!"

"Please mute your mic!"

BEST DRESSED ZOOMERS (at least from the waist up)

Andrea Jarero

Rick Flores

Cesar Rodriguez

Deniz Kadirhan

Lisa McCormick

BEST DRESSED JUDGES

All of them.  They all wore the same black robe.

BEST ZOOMER BACKGROUNDS

Delani Long-The fireplace kept us warm.

Bill Hines-From a boat? Whaa?

Nicolette Vaughn-Starbucks is a good place to do business.

BEST HEADBOARDS WHILE ZOOMING IN BED

No, not going there.

"CASTAWAY" AWARD

Jodi Sims - Where's Wilson?

"OUT OF THIS WORLD" AWARD

Johnny Urrutia - Houston, are you seeing this?

"ARROWHEAD" AWARD

Amber Farrelly - I need this like a hole in the head.

"GHOST" award

Samuel Rosen - Help from Beyond?

TRIAL DOGS 2017: ACCOLADES AND RECOGNITION

AFTER LONG DELIBERATIONS AND CONTENTIOUS DEBATE, THE COMMITTEE FINALLY VOTED THE TRAVIS COUNTY AWARDS:

BEST QUOTE:
"Judge, Judge, a ruling in my favor would be worth my weight in gold...or should I say diamonds?"
   --Pro Se Defendant in Federal Court accused of being a diamond thief 

TRIAL DOGS
Amanda McDaniel (posthumous)
Patricia Cummings
Russ Hunt
Jeff Senter
Bill Browning
Jackie Wood
Ray Espersen
Ariel Payan
Darla Davis
Steve Brittain
Alan Williams
Gerry Morris
Mary Ann Espiritu
Steve Brand
Daniel Wannamaker

LA ANTORCHE DE JUSTICIA AWARD
Bill Hines
(5 murder dismissals in 2 years)

WORKHORSES OF THE YEAR
Robert Smith*
Jesus Salinas*
Mike Burke*
Charles Popper
Elizabeth Resendez
* denotes repeat winner

BEST DRESSED MEN
Marc Chavez
Jeremy Sylestine
Geoffrey Puryear
Todd Dudley
Novert Morales
Ricardo Maldonado
Russ Sablatura
Lucio Del Toro
Craig Moore
Ben Blackburn
Alex Conant
Ben Castoreno
Raphel Hernandez
Steve Brand
Marc Ranc

BEST SHOES
Chari Kelly
Amy Meredith
Elizabeth Resendez
Jessica Bernstein
Eloisa Ontiveros Garcia
Sheila Merino
Jana Ortega
Monica Noyola
Claire Carter
Erika Hansen
Jill Gately
Andrea Austin
Kellie Bailey
McKinley Melancon
Delani Long
Michaela Cuellar
Deniz Kadirhan

SHERLOCK HOLMES INVESTIGATOR AWARD
Mark Gillespie

SPECIAL AWARDS
Charles Popper-Del Valle Visitation Award (repeat winner) 
Shane Brooks-Comeback of the Year
Margaret Chen Kercher-Rising Star

BEST COURTHOUSE COFFEE
(tied)
299th District Court
Magistrate Court

NOTE:  THE COMMITTEE IS A SECRET CABAL WHO MEETS IN SECRET IN AN UNDISCLOSED LOCATION WITH ENTRY ONLY BY SECRET HANDSHAKE.

YEAR IN REVIEW 2017-Trials and Other Assorted Fun

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 and the result. Many thanks to all those who helped.

TRIAL #1
Travis County 450th District Court
Injury to a Disabled Person
State of Texas v. Jonathan Price
Length:  3 Days
Second Chair:  Richard Collins
Penalty Range:  2-20 Years
Result:  Convicted 9 years TDC

Defendant allegedly struck a blind man with a service dog at a bus stop. Defense was that the man did not appear disabled (the Defendant thought he was just a guy walking his dog) and the man did not meet the statutory definition of disabled.  The jury instruction gave the affirmative defense but the court refused the lesser included.
Pretrial Offer: 8

TRIAL #2
Travis County 390th District Court
Continuous Sexual Assault of a Child
State of Texas v. James Faglie
Length:  5 Days
Second Chair:  Alex Calhoun
Penalty Range:  25-99/life
Result:  Convicted 35 Years TDC

Biological daughter made numerous allegations over several years.  The state presented an additional witness to corroborate the behavior.
Pretrial Offer: 40

TRIAL #3
Travis County 299th District Court -Bench Trial
Agg Kidnapping/Agg Assault
State of Texas v. Sayed Sadat
Length:  3 Days
Second Chair:  none
Penalty Range:  5-99/2-20
Result:  Convicted 30/20 years TDC

Defendant attacked a social worker with a screwdriver on her face and bit her.  Defendant was from Afghanistan and spoke Dari.  There were communication challenges, but ultimately an interpreter spoke in his native tongue throughout the proceedings.
Pretrial offer:  30/20 TDC

TRIAL #4
Travis County 331st District Court
Driving While Intoxicated Enh Habitual
State of Texas v. Raymond Young
Length:  3 Days
Second Chair:  Val Antonio
Penalty Range:  25-99/life
Result:  Convicted 10 years TDC

Defendant arrested after an accident and other calls about a car with his description driving erratically.  Witnesses put him behind wheel and Defendant appeared highly intoxicated.
Pretrial offer:  2 TDC

TRIAL #5
Williamson County 368th District Court
Aggravated Robbery Enh
State of Texas v. Theo Demaree
Length:  4 Days
Second Chair:  Todd Dudley
Penalty Range: 25-99/life
Result:  Convicted 25 years TDC

Defendant and girlfriend allegedly set up a prostitution deal via Plenty of Fish dating app and then robbed the crack-smoking victim.
Pretrial offer:  30 TDC

TRIAL #6
Travis County 331st District Court
Impersonating a Peace Officer/3x of Robbery (6 victims)
7 counts of Engaging in Organized Criminal Activity
State of Texas v. Dustin Clark
Length:  4 days
Second Chair:  Richard Collins
Penalty Range: 5-99/life each count
Result:  Mistrial on all counts

Defendant accused of numerous robberies and impersonating a Peace Officer.  The state had GPS evidence on the Defendant vehicle, Cell Phone records coinciding with the GPS,  text messages between Defendant and co-defendants, and testimony from co-defendant as to identification and planning.
Pretrial offer:  15 TDC



 

YEAR IN REVIEW 2015-TRIALS AND OTHER ASSORTED FUN

CALM BEFORE THE STORM

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.

2015 was not quite as active as 2014, but it started with two trials and then I had a break until December.  2016 may yet set the record.  We'll see.

TRIAL #1
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

TRIAL #2
Travis County 147th District Court
Murder
State v. George Delacruz
Length: 8 days
Penalty Range: 5-99 Years
Result:  Conviction Life

The Defendant was convicted of killing his wife.  There was no body of the wife ever found.  After 8 days of testimony the jury convicted.  There are several issues on appeal and the finality of the case will take some time.
Rank:  Temporary Victory by the Prosecution

TRIAL #3
Travis County County Court #4
Assault Family Violence Stranglation
State v. Romien Pierce
Length: 3 days
Penalty Range:  2-10 Years
Result:  Plea for Deferred Adjudication just prior to closing argument

The Defendant was accused of strangling his then girlfriend.  After various inconsistencies in the stories, the Defendant testifying, and some jury irregularities, the Defendant decided to accept the state's offer of Deferred.  He had been in jail more than a year.
Rank:  Moderate Victory by Defense

2016 is already shaping up to be the year of the trial (topping 2014 if you can believe that!).  I have 5 jury trials set from the first of February until mid April.  I have been preparing for all of them and I will be ready.  But I will also be ready for that vacation scheduled for this summer.

LEGISLATIVE FOLLY

       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.  From the Defense angle, it gives more flexibility.

      

TRIAL DOGS 2014: ACCOLADES AND RECOGNITION

AFTER LONG DELIBERATIONS AND CONTENTIOUS DEBATE, THE COMMITTEE FINALLY VOTED THE TRAVIS COUNTY AWARDS:

BEST QUOTE OF 2014

"All we ever wanted was Vicki's body, but he [pointing at Defendant] won't tell us where she is! Closing argument by Jana Duty in Williamson County cold case murder, commenting on the Defendant's right to silence.

HUMANITARIAN OF THE YEAR AWARD
Elsie Craven
2 successful Hearings in obtaining political asylum

TRIAL DOGS OF 2014
[For those who went the distance.]
Brad Urrutia*-7 Felony Jury Trials
Jackie Wood-6 Felony Jury Trials
Victoria Winkler-5 First Chair Felony Jury Trials/5 Second Chair Felony Trials
Marc Chavez*-5 First Chair Felony Jury Trials/2 Second Chair Jury Trials

HONORABLE MENTION
Mindy Montford
Russ Hunt

LA ANTORCHA DE JUSTICIA AWARD
[Most Intimidating Defense Lawyer to Prosecutors]
Raymond Espersen

BEST DRESSED MEN
[Those who show style under fire.]
Lucio Del Toro
Novert Morales
Russ Sablatura
Ben Blackburn
Todd Dudley
Jeremy Sylestine
Joe Fredrick
Brad Urrutia

WORK HORSE(S) OF THE YEAR
[For those who enable their bosses to take those exotic vacations.]
Robert Smith (Law Offices of David Chambers)
Mike Burke* (Peek and Toland)
Jesus Salinas (Law Office of Jon Evans)

WORST DRESSED LAWYERS
[Having trouble distinguishing lawyers and clients?]
Anyone who wears baggy shirts, bluejeans, tennis shoes, clogs, or sandals in a court of law.

BEST BEARDS
Chris Baugh
Mike Burke*
Marc Chavez*

BEST SHOES
Jana Ortega
Yvonne Patton
McKinley Melancon
Monica Flores
Diana Buss
Adam Reposa

BEST INNOVATION TO PRACTICE LAW
The AMP website (includes nearly everything you need to be a paperless office).

MOST HYPOCRITICAL DEFENSE LAWYERS
Those defense lawyers that judge other defense lawyers qualifications to be on CAPDS when they themselves couldn't qualify to be on the list(s)(Hey those on the Review Committee, you know who you are).

BEST RESTROOM(S) IN THE CRIMINAL JUSTICE CENTER
Public Restrooms on the second floor.  They are roomy and have a chair to allow continued plea negotiations with prosecutors without interruption if necessary.

SPECIAL AWARDS
Charles Popper-The Del Valle Visitation Award for most frequent visitation of clients.
[Repeat Winner]
Steve Brand-El Abogado Etico Award for principled decisions in the face of adversity.

*Denotes Multiple Winner

The Committee is a highly secretive cabal and the process is classified.

NOTE:  The author's Year In Review is in the post below

ENVIRONMENTAL DEFENSE

WHEN MOTHER NATURE CALLS

     Being charged or investigated for an environmental violation is not only time consuming, but expensive, stressful, and humbling.

     The Travis County District and County Attorney have joint and statewide jurisdiction of all environmental prosecutions at the state level in Texas.  Their investigative and prosecution powers extend to civil as well as criminal penalties.

     On the civil side, the powers of these governmental entities extend to the enforcement of subdivision regulations, stormwater violations, fire code violations, floodplain violations, and nuisances.  On the criminal side, violations can be prosecuted under the Health and Safety Code, Transportation Code, or the Texas Water Code, and others.

     The substantive areas covered are WATER, LAND, and AIR.

   WHO IS RESPONSIBLE--Individuals and non-individuals can be held criminally responsible.  Non-individuals include: corporations, LLC's, partnerships, associations, and trusts.  Also, facilitators such as those involved in the causing, suffering, permitting, or allowing of the activity.

     PUBLIC NUISANCES/SOLID WASTE--Anything that typically interferes with the use and enjoyment of the land is generally considered a public nuisance.  Generally, land conditions such as junked cars, refuse, unsightly, unsafe, or unsanitary conditions will draw the attention of these enforcers.  Solid waster regulation usually falls under Health & Safety Code Chapters 361 & 365, 30 Texas Administrative Code 330, and various County Codes.  What is the difference?  LOCATION, DURATION, & CONDITION!

     Solid Waste can be garbage or litter, Municipal or Industrial.  It can be in an unapproved place or disposed of in an unapproved manner.  It can depend on how it is processed, stored, transported, or received.  It can be prosecuted according to weight or volume.  It doesn't matter if the accused didn't dump it, or it was on their own property, or they are recycling it, or they didn't know it was wrong, or they are still using it.

     WATER/AIR POLLUTION--For water, the relevant codes are Texas Water Code Chapters 7 & 26.  The Discharge of waste or pollutants can be either permitted or non-permitted.  For air, the Health & Safety Code Chapter 382, Texas Water Code 7.177(s)(5) and 30 TAC 101, 106, 111 govern.  Yes, outdoor burning is governed by these codes, but there are exceptions-What, Why, How, Where, & When.

      What is not proper to burn?  Insulation, treated lumber, plastics (non-packaging), non-wood construction and demolition materials, heavy oils, asphaltic materials, potential explosives, chemical wastes, items containing rubber, tires, furniture, and carpet.  This can include smoke, fumes, or odors that harm humans, animals, or vegetation.

CONTAMINANTS-Pb, HAPs, VOCs, PM10, NOx.  Permitted?  Maybe, for surface coating, food processing, surface preparation, metallurgy.

CONCLUSION-Mother nature laws can be tough, encompassing, expensive, and time-consuming.  My office will diligently pursue a defense to any accusations and fight to minimize any effect on your business or personal exposure to civil or criminal liability.

EXONERATIONS

The Past Never Goes Away, Thank Goodness

In an excellent article in today's New York Times, the contributing publication Texas Tribune outlined the 86 exonerations which have been granted in Texas in recent years.  By putting a face with most of these tragedies and stories behind them, the Tribune has aided in putting this on the upcoming legislative agenda.

I have taken a few minutes to break this down by category to try to understand this vexing problem:

COUNTIES OF EXONERATIONS:
Dallas                   37
Harris                   13
Travis                    7
McLennan             3
Tarrant                   3
Montgomery          3
Rains                     2
El Paso                  2
Lamb                     2
Counties with 1     14

RACE
Black                     42
White                    28
Hispanic                11
Other or Unknown  5

GENDER
Male                     81
Female                  5

CHARGE
Sex Assault           43
(Including Children)
Murder                  32
Robbery                 6
Others                    5

SENTENCES
Death                     10
Life                         33
60-99                       7
40-59                      12
20-39                      14
0-19                         7
Probation                 1

REASONS FOR EXONERATION  (May be more than one per case)
Post-Conviction Evidence                                56
(DNA, Recantation, etc.)
Prosecutorial Mishandling of Evidence             20*
(Withholding, Coercion, etc.)
Faulty Eyewitness Identification                        12
Ineffective Assistance of Counsel                      6
Use of Inadmissible Evidence                            5
False Confession                                              3
Unreliable Forensic Science                              3
Police Misconduct                                              2

*The Texas Tribune categorized the admission of another defendant's statement as prosecutorial misconduct.  I prefer to label this as an erroneous ruling by the Court.

For the complete interactive, please go to this link.

BLOOD DRAWS: The Sequel

Ok, Ok, I know. I've advocated for blood draws under a higher standard under certain conditions and stopping there. But who would have thought that shortly thereafter, I would be rear-ended by an apparent intoxicated driver on Route 79 in Round Rock coming home from my office today.

I was driving westbound on 79. As I slowed for the light on Sunrise, I glanced in my rear-view mirror to see a van going a bit too fast to stop. As I eased up on the brake to absorb the impact, the van struck me. I departed from my vehicle to see a somewhat disoriented person behind the wheel. Motioning to a nearby parking lot, he followed me into the lot and proceeded to ramble some incoherent blather. Interestingly, a women in a white van followed us in, motioned me over and proceeded to inform me she was on the phone with the police about his erratic driving prior to the accident.

After I exchanged insurance info with him (with the help of the police), I left. As I was leaving, the police were beginning the SFST's. I didn't stick around. The policeman called me later and informed me that the driver was arrested for DWI 2nd. I was told he admitted to 3 beers and an undisclosed amount of Xanax.

So, is this an appropriate scenario for a blood draw? Under the current APD policy, it is if there is a total refusal. Is that appropriate--collision, prior DWI, and total refusal (I don't know if he refused on this, but let's say he did)? I feel the public's pain (literally). I can see no powerful legal argument to counter the public opinion to get tougher on drivers like these, even if we suggest a higher standard for warrants.

If we as lawyers are going to try to limit the use of blood draws, we had better find an argument that is going to jolt the public to action at least as hard as I was jolted out of my seat today. To this end it will be no small task.

Am I still advocating the policy in my previous post? Hey, I'll get back to you on that.

PLEADING GUILTY: Sometimes it pays to balk

Some lawyers say that the best results are often in the deals we cut, not the trial results. But what about the plea bargain our clients agree to, but back out on at the last moment? Two experiences of mine illustrate that some clients can really get lucky.

One client of mine a couple of years ago was on trial for Burglary. He was enhanced from a prior conviction and he was facing substantial prison time if convicted. At trial, the prosecution had a difficult time matching his driver's license signature with the pawn slip signature on the stolen goods that were pawned 30 minutes after the burglary. After 5 hours of jury deliberation, the prosecution offered a misdemeanor sentence which would have meant 2 more months in the county jail. The client hesitantly accepted, and I completed the paperwork.

Upon appearing in front of the judge, he couldn't bring himself to speak the word guilty. The judge voided the deal and sent the inmate back to the holding cell. After a discussion with my client on the merits of completing his agreement, he was allowed to re-emerge and began the process again. However, the alleged victim, wanting to be present, was off having a cigarette. We waited 20 minutes. When the victim arrived, the plea began.

After the admonishments and his plea of guilty, the judge began the sentencing. At that moment, the bailiff informed the judge the jury had reached a verdict. The prosecution requested the plea cease and the verdict be read. At that moment, I thought my client had wasted an opportunity to resolve his case and was facing anywhere from 5-20 years in prison. The jury came back Not Guilty.

About the same time, I had represented a man accused with his 3rd DWI along with enhancements making him habitual offender with a punishment range of 25-life. After doing the discovery, including video tapes, I negotiated an 8 year TDC sentence with his permission. He accepted and I completed the paperwork.

Upon appearing in front of the Judge, he then renounced the agreement and requested a jury trial. He was then placed on the jury docket. Meanwhile, the Court of Criminal Appeals interpreted the 10-year rule (abolished since) to mean that each DWI conviction had to fall within 10 years of each other used for enhancement. Because my client's first DWI was 17 years before the second, the DWI charged was effectively a Class A Misdemeanor. He appeared for trial and he plead to the Misdemeanor and went home. Had he not hesitated to agree to the deal, he may still in prison.

Lucky? Perhaps. But it just shows you, justice comes in various forms.