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My Client Says He is Innocent But He Wants to Plea

March 17, 2016 1 Comment

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TOP10 March 18, 2016

My Client Says He is Innocent But He Wants to Take a Deal to Get Out of Jail, What Do I Do?
by JoAnne Musick, HCCLA President and lawyer lifeguard_Page_22

So, your client who maintains his innocence wants to “take a deal” in order to get out of jail. Can you allow your client to enter a plea of guilty, even though he maintains his innocence? Let’s start with the Texas Disciplinary Rules of Professional Conduct.

Rule 1.01(b)(1): A lawyer shall not neglect a matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.

Rule 1.02: A lawyer shall abide by a client’s decisions in a criminal case, after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.

Rule 1.02 Comment 2: A lawyer shall disclose offers to settle (proposed plea bargain offers in criminal cases).

Rule 1.03: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to a client so that the client can make informed decisions about representation.

First, you have an obligation and a duty to your client. If the prosecutor has made an offer, you must relay that offer to your client. You must also explain the offer sufficiently for your client to determine whether or not to proceed to trial or accept a plea offer. It is imperative that you not only convey offers and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Secondly, you must remember that it is the client who decides what plea is to be entered. He may plead guilty or not guilty. That decision is his and his alone. You should advise him as to the consequences of his plea, but the decision to enter a plea rests solely with the informed client.

Outside the Rules, you must consider the plea itself. Remember, the client maintains his innocence, yet he wishes to enter a guilty plea and take advantage of a plea-bargain. While a judge does not have to accept any plea of guilty (thereby forcing a trial wherein the client could plead guilty to the jury), the judge can accept a plea even where the defendant asserts innocence.

The Supreme Court held in North Carolina v. Alford, 400 U.S. 25 (1970) that there is no constitutional bar preventing a judge from accepting a plea where a defendant maintains his innocence while admitting that the prosecution has enough evidence to convince a jury beyond a reasonable doubt that he is guilty. Thus, his plea stands regardless of his stance that he is innocent. This is typically referred to as an “Alford plea.”

So to answer our original question, the answer is simply you can most likely allow your client to enter a plea of guilty (to a judge or jury) despite the fact he maintains his innocence. Once the client is fully informed, the decision of the plea to enter (guilty or not guilty) rests solely with the client.

Filed Under: Defender, justice, practice pointers Tagged With: alford plea, criminal defense, plea bargain, practice pointer

THE LIFEGUARD

March 17, 2016 Leave a Comment

the lifeguard
by Rick Oliver, HCCLA member and attorney lifeguard_Page_16

“Back in the day I was a lifeguard, if you can believe that.”

After a hesitant pause, she said, “Not as easy as it looks, is it?”

He shrugged to himself. His eyes drifted up and as they did the phone slid down his chin a bit. He could have heard her if she were talking. But she wasn’t; she was waiting for him. He took a deep breath and gently probed the darkness. It was too complete to discern the shapes on the wall, but he wasn’t scared. It was his office, after all; had been for the last twenty years. He could smell his smell in it. Everything he touched was warm and familiar. He could move confidently in the darkness without offending a shin. This place symbolized his place in the world. Every stick and scrap was evidence of or a testament to the career he’d conjured virtually out of nothing. Still, he knew, pride isn’t enough to light what’s dark.

His was the same sort of crap you see adorning the walls of nearly every defense attorney’s office. Certificates of accomplishment, laurels earned and laurels bought, tokens of appreciation, historical hubris, and the scalps of fallen enemies. He knew what they were. He knew they were there. He’d spent what felt like a lifetime among these baubles. He knew he would recognize them immediately, if only the lights were on. He sighed and mumbled, “I can only see it when I close my eyes.”

Gently, she said, “What was that, John?”

He shook his head like he was warding off a fly, readjusted the phone and said, “Nothing.”

“Did you ever save anyone?”

John’s eyes were drawn to the black corner where the inky dark loomed heavy and substantial. His filing cabinets were a mausoleum of old voices and the stories that had brought them here. Of course he had saved some of them. Some he saved from themselves. Others he plucked from circumstance and the conclusion it suggested. For those victimized at the altar of leverage he had found the fulcrum and turned the tide. Too many had been spared the wrath of political guile masquerading as adversarial zeal. Of course, some of them were just as guilty as Hell. He saved some of them, too. But, he hadn’t been able to save them all. There were just too many.

“When you were a lifeguard, I mean.”

John chuckled quietly and said, “Once. But mostly, I worked on my tan. I remember by the end of that summer the sun had bleached the hair on my arms and legs white.” Instinctively, he reached for his forearm and could remember the soft blonde fuzz of that summer despite the coarse salt and pepper of this winter. “My Mother used to boast that the contrast of those tiny white hairs against golden skin made me seem almost angelic.”

“I’m sure it was just a trick of the light.”

His laugh was almost a foreign sound. He said, “No doubt.”

“Tell me about the one you saved.”

He took a deep breath and leaned his chair back, anticipating the soft nasally squeal of rusty spring. He pressed his head into the rough leather and felt the cold knot of tension that always seemed to play at the base of his skull.

“You ever notice how so much of life is metaphor?”

“I have to be honest,” she said. “More often I find it to be allegorical.”

John cleared his throat and said, “I suspect secular dogma is mostly to blame, for that.”

“How do you figure,” she asked.

“You want to talk about that or you want to talk about the pool?”

“Good point,” she said. “Let’s talk about John the Life-Saver.”

“That’s probably a bit ambitious, but I’ll tell you anyway. I was in my stand, rigidly observing that 10/20 principle they drilled into your head back then.”

“Ten seconds to scan your area; twenty seconds to get to and rescue anyone in it?”

“Very good,” John said. “She was across the pool from me.”

“Tell me about her, if you remember.”

“She was Hispanic. She was there with a few other women and a gaggle of kids who all bore at least the slightest resemblance to her. At the time she seemed old, to me. Looking back, I assume she was in her mid-thirties; a baby. Her hair was twisted with one of those thick green rubber bands they use to package broccoli at the grocery store. It didn’t matter, though. She had the kind of hair whose vibrant simplicity makes other women jealous.”

“The rubber band is kind of an obscure thing to remember. Why do you think you focused on that?”

“I was scanning my area when she eased into the pool. You could tell right away the water made her nervous. The kids all hollered and cajoled and the adults even clapped as she went in. The kind of thing that would piss you off, if they weren’t her family. Some of the kids splashed her and you could tell she didn’t like that; not because of what the water could do, but because of what it was. I don’t think any of those kids could understand her fear. I know I didn’t, then. Anyway, she put on a brave face and started bouncing up and down a little. But, she was careful not to let her head go under. She was white-knuckling the concrete with one hand and waving the other around in circles under the surface—a pitiful attempt to float. That was the start of it. She would bounce a few times and then float into deeper water, all the time testing her footing. Bounce and float, bounce and float. Check for ground. Deeper and deeper. By then no one was paying attention to her anymore.”

“Except for you,” she said.

In the dark, John shook his head. He looked up at the ceiling and slowly exhaled a shuddering breath. “Not me either,” he said.

“What happened?”

“On my next pass I got to the spot I’d last seen her but she was gone. It took me a second or two to realize she’d gone under. Got too deep and lost her grip on the firmament, I suppose. I hadn’t realized how short she was until she went under. All I could see were two little hands reaching heavenward, either side of that beautiful brown hair.”

“She didn’t panic when she went under?”

“Maybe that’s why I didn’t keep as good an eye on her as I maybe should have. I figured if she got into trouble she’d start thrashing about and get everybody’s attention. Surely, I thought, her family would go in after her and she’d be out of the pool before I could get out of my stand. But, that’s not how it happened. I guess not everybody drowns the same way.”

“Would it be easier if everyone did?”

“I think you’re asking a tougher question than you realize.”

After a pause she asked, “Did she make it?”

“I don’t remember blowing my whistle but I can still feel those three sharp blasts in my chest and in my bones, silencing the din like gunshots as I fell from the stand like a stone in to water. I hunched over my rescue tube and swam to her as fast as my arms would carry me. When I got there I jabbed an arm in the water and grabbed ahold of her just above the spot where that thick rubber band was binding her hair.”

“So,” she asked.

“I pulled her up and she coughed a gout of urine-laced pool water, but the important thing is she was coughing. Anyone with kids will tell you that’s a good sign.”

“So, you pulled her up by her hair and saved her?”

“I did.”

“Ouch.”

“My Father always told me to never confuse safety and comfort. I figure she learned that lesson the hard way, that day.”

When she didn’t respond John stood up with the phone. He stepped around the open desk drawer and walked to where he knew the sideboard was. He jiggled the stopper and set it next to the decanter. It rolled on its side and settled with a pleasant clink. He groped for a high ball and when he got it added three fingers of Scotch. It was reduced to a bony finger by the time he regained his seat.

“Can I ask you something, John?”

“Please, do.”

“What was it that reminded you of your lifeguarding days?”

John set the high ball atop his desk and leaned his chair back again. Slowly, he let his head roll forward and loll side to side, trying to work out a kink. He said, “Before you could get hired as a lifeguard you had to pass a couple tests; prove you were a strong enough swimmer for the job. The first was easy enough. It was a timed five hundred meter swim. I hadn’t yet learned how to swim with my head under water, but they gave us plenty of time to finish and I did it without too much trouble.”

“What was the other?”

John leaned forward and put his elbow on the desk. He exhaled a breath that came out in a dry fetid rush. He swallowed the last of his drink. He said, “There was a separate pool by the diving boards where the water was deepest; so deep you couldn’t make out the bottom. They took us over there and we saw something odd. Cinder blocks were spaced out along the edge of the pool; one for every applicant. They didn’t mention the blocks and we didn’t ask. We got in the water and they told us all they wanted us to do was tread water. We started and did that for what seemed like forever. It wasn’t a problem for any one of us and I think that made us all a bit cocky. I remember a joke or two coming at the expense of the strength of the application process.”

“You forgot about the blocks.”

“We did. After a while we thought surely they must be satisfied. They told us to swim to the side of the pool. We thought it was over and we’d passed their test. It wasn’t and we hadn’t. They told us to each grab a cinder block and wade back out to the center. Once we were out there a stop watch was produced. They told us to hold the cinder blocks above our heads and tread water until they told us to stop. If we dropped the block we were out.”

“You passed the test.”

John nodded and in his solace a single tear tracked his cheek and settled with a mournful tickle along the base of his jaw. “I was a young man, then. The cinder block weighed fifteen, maybe twenty pounds at the most. At the start, I held it up in one hand and with a smirk on my face. Obviously, I was showing my ass. But, pretty soon it felt as though I was holding a goddamn elephant above my head and I wasn’t smirking anymore. My arms and legs and lungs were burning like fire, but I was determined not to let that cinder block beat me. I wanted to impress the ones who were there who’d already passed the test. And I wanted to wipe the smug look of satisfaction off the face of the man holding that stupid stop watch, too. Pretty soon two of my fellow applicants dropped their blocks and kicked for the side where they clung to it, defeated. Still, I kept kicking and thrashing. In the beginning I was high and strong and able to keep my chin clear of the water. As time passed I could feel myself beginning to sink. It was such an odd sensation feeling your strength flag in such tiny but meaningful increments.”

“What do you mean?”

“I was drowning; that’s what I mean. I was just doing it slowly and against my will. I realized it when I felt the water on my cheeks. It tickled a little and forced me to blow air out my nose so I could breath. I had to kick hard every so often to get clear of the water so I could take a full breath. The water didn’t care. It was ready to accept me dead or alive; docile or thrashing. And then it was tickling my earlobes. I could barely force a kick hard enough to clear the water for air. Still, I kept kicking and sinking. When it started to sting my eyes I cried out of frustration. I set my jaw and stared blurry lasers at the man counting the time. I believe I would have gone right down to the bottom holding that block over my head, if it had come to that.”

“But it didn’t.”

“Fortunately, no.”

“What do you think gave you the strength to endure?”

“I knew I could drop the block.”

“What’s so different now, John?”

John lowered his head until it was touching the desktop. He whispered, “I can’t drop the block. Not anymore. No matter how heavy it gets or how far under I go. There’s no rest and no break. No stop watch and no end. I can only see one way to get out from under it, anymore.” He started to cry; silent and wracking sobs. Blindly, he reached inside the open desk drawer and gripped his pistol. Like everything else in his office it felt comfortable and familiar. It felt easy and light, and with it the promise of a dream. With his eyes closed, he could see it perfectly.

“John?”

He clamped his mouth shut to stifle a sob and didn’t trust himself to speak. He thought about ending the call. He wondered whether it had been a mistake to begin with.

“John? Are you still with me?”

John was able to manage a confirmatory squawk.

“Get up and turn on the lights, John.” The hardened edge to her palliative tone caught him off guard. He looked up and wondered through tears how she knew he was sitting in darkness.

“How did you know the lights were off?”

“Turn them on, John.”

Confused, but obedient, John pushed himself back from his desk and went to the wall switch. Light bathed his office and he winced. As his eyes adjusted the frames on the walls returned slowly to focus.

“John?”

“I’m here.”

“The block is your life and it’s heavy because it’s meaningful. You don’t have to drop it, John. You don’t have to drop the block and you don’t have to carry it alone. Are the lights on?”

“Yes.”

“Look around.”

Tetchily, John said, “It’s my office. I know what’s here.”

“I think you’ve forgotten, John. Look around. Look around and remember what all you’ve accomplished; who all you’ve helped. Take things down or pick them up and dust them off; examine the details. Re-experience them, John. Those things add weight to the block, too. And those are things you shouldn’t want to let go of. You’re lonely; not alone. When you lose contact with the faces and the places and the love, of course it’s just you holding a cinder block overhead in a big dirty pool of hungry water. Once you realize that, the block will start to feel lighter and lighter. You may even feel strong enough to show your ass, a little.”

He hung on every word, trying not to fall victim to what he so often accused others of: not listening. He wanted her help. That’s why he had called. He breathed deep and steadying breaths. He looked around his office. Somehow, it felt both familiar and new. He saw faces and could hear their voices. It wasn’t all laughter. There was pain, too. But it filled him up and for the first time he began to feel grounded and whole. Emotion welled up and he wondered how he could have ever considered escape. He moved from picture to picture; bauble to bauble. He had no idea how much time had passed; another welcome feeling. He realized she was still on the other end, waiting for him to come back.

For the first time in as long a time as he could remember, he smiled a smile of genuine appreciation. Not just for her voice, but for the voices she helped awaken. “Thank you, Hope.”

“I’m glad you called, John.”

John started to drop the phone but stopped. “Hope?”

“I’m still here, John.”

“That’s not your real name, is it?”

He smiled as she giggled from the other end. “Have a good night, John.”

 

Texas Lawyer’s Assistance Program: If you need help call any time day or night—(800) 343-8527

Filed Under: Defender, Members Tagged With: Defender, help, stress

HCCLA files Southlawn Amicus

February 29, 2016 Leave a Comment

HCCLA, together with TCDLA and the Harris County Public Defender’s Office, has filed its amicus (friend of the court) brief in the Southlawn Gang Injunction case.

The Harris County County Attorney and District Attorney have sought to banish members of the Southlawn community from entering the area under the theory that they are protecting this area from gang activity. In short, the County has identified many individuals whom they seek to explicitly and permanently ban  from entering, remaining, appearing, sitting, walking, driving, bicycling, or being physically present within the “Southlawn Safety Zone.” This zone is just over 2 square miles.

While we recognize the County’s attempt to curb criminal activity within a particular area, this approach is offensive to the Constitution and effectively expels the named defendants from ever entering the area – whether for school, church, or to visit family.

Banishment, while used in medieval times, has never been authorized under Texas law. Banishment is the greatest form of punishment and should not be used as a civil remedy.

The full text of our amicus can be viewed and downloaded here:

Download (PDF, 210KB)

 

Thanks to the lawyers involved in this litigation for bringing this issue to our attention. And special thanks to Nicolas Hughes for his work in researching and writing on this issue.

For more information on the civil injunction case, Drew Wiley provides an overview.

See also, Texas Lawyer coverage

Filed Under: clients, constitution, justice, press release, Public Trust Tagged With: banishment, district attorney, Southlawn gang injunction

PR: Grievance against judge sustained – Private reprimand

February 26, 2016 Leave a Comment

Houston, Texas – February 26, 2016 – The Harris County Criminal Lawyers Association (HCCLA) is pleased to announce its complaint against sitting judge William “Bill” Harmon has been sustained with a private reprimand being issued.

For years, Judge William “Bill” Harmon arrogantly and inappropriately displayed his Mother’s Against Drunk Driving award on the bench in Harris County Criminal Court at Law #2. Despite requests from HCCLA and lawyers that it be removed, especially during DWI trials, Judge Harmon persisted in its display. During at least one trial, the potential jurors seated in the gallery responded they could see and read the M.A.D.D. plaque; they knew the meaning of the acronym so prominently displayed on the plaque; they even found its display ironic and uncomfortable. The display represented exactly what judges are supposed to avoid – an appearance of bias or impropriety.

The courtroom is a public place to be free of special interests, especially where the court appears to be aligned with the special interest. Our judiciary must be vigilant in its fairness to all parties appearing before the court and must not align itself with special interests that cast doubt on the court’s impartiality.

HCCLA’s complaint also included other inappropriate conduct.

HCCLA filed a judicial complaint with the Texas State Commission on Judicial Conduct on April 14, 2015. On February 19, 2016, the Commission confirmed its private reprimand of Judge Harmon via written letter (received today).

Because the Commission has issued a private reprimand, rather than a public sanction, we do not have any additional details as to what may have transpired between the Judge and the Commission. We do know that a condition of the reprimand was that Judge Harmon remove the offending display from the public courtroom.

A complete copy of the judicial complaint can be found at: https://hccla.org/madd-about-bias/

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Download (PDF, 875KB)

Filed Under: press release

MADD About Bias

February 26, 2016 Leave a Comment

Have you been in Harris County Criminal Court at Law #2 lately? If so, you may have noticed the long present and blatantly offensive M.A.D.D. plaque is now absent, thanks to a reprimand from the State Commission on Judicial Conduct following a complaint by HCCLA.

For years, Judge William “Bill” Harmon arrogantly and inappropriately displayed his Mother’s Against Drunk Driving award on the bench in County Court #2. Despite requests from HCCLA and lawyers that it be removed, especially during DWI trials, Judge Harmon persisted in its display. During at least one trial, the potential jurors seated in the gallery responded they could see and read the M.A.D.D. plaque; they knew the meaning of the acronym so prominently displayed on the plaque; they even found its display ironic and uncomfortable. The display represented exactly what judges are supposed to avoid – an appearance of bias or impropriety.

One of the most basic canons judges must follow is to remain impartial and avoid even an appearance of impropriety. This is why the display was offensive. This is why HCCLA was compelled to take action and file a formal complaint with the State Commission on Judicial Conduct when Judge Harmon refused to remove the display. The direct result of our complaint was a private reprimand against Judge Harmon for this behavior.

For a judge who routinely hears DWI cases to display a perceived alliance with M.A.D.D. is beyond an appearance of bias. It very plainly shows a bias or prejudice against those who come before the court. Imagine being charged with DWI and walking into court to see that Mothers Against Drunk Drivers has honored the judge for his assistance in their plight. Would you trust that judge to be fair in your case? No, you wouldn’t. Does that bias instill a public trust in the judicial office? Of course not.

This inappropriate display finally came to an end with a private reprimand from the State Commission on Judicial Conduct. The Commission is a state agency created under the Texas Constitution responsible for investigating allegations of misconduct and for disciplining judges who run afoul of the judicial canons that govern their conduct.

Following a request for the plaques removal, several court opinions, and finally an HCCLA complaint to the Commission, Judge Harmon has finally removed the offending display. One would have thought the suggestion that perhaps Judge Harmon would “do the right thing” following a recusal hearing would have received his attention. One would have thought the remarks of Judge Sharp, First Court of Appeals, expressing that the sanctuary of a public courtroom should be free from special interests groups and agendas would have mattered. One would have thought a Court of Criminal Appeals opinion condemning this display would have caused Judge Harmon to take note. But alas, Judge Harmon continued his offensive display of perceived bias against alcohol related cases and defendants who came before him on a daily basis.

Even during the almost year of a pending judicial misconduct complaint, Judge Harmon maintained his display. Absurdly Judge Harmon even suggested to the Commission during its investigation that photographs of the display, made part of the complaint, were staged or altered.

Right around the first of the year, the plaque mysteriously abandoned its home on the bench. Come to find out, Judge Harmon seemed to be aware of an impending decision of reprimand coming from the Commission.

The State Commission on Judicial Conduct took action on our complaint. The Commission issued a private reprimand against Judge Harmon. The Commission cited his display of the plaque as against his obligation to avoid the appearance of impropriety and his bizarre comments regarding the motion to recuse him for failing to remove the plaque. In this side issue, the Commission noted Judge Harmon’s improper ruling on the face of the recusal motion. Harmon had written it was clear to the defendant that the judge was impartial based on her decision to elect judicial punishment in the event of a guilty verdict. However, the law does not allow the judge to make a response to a recusal; his duty is merely to refer the motion to be heard by a neutral magistrate.

All-in-all, despite requests and admonishments, Judge Harmon refused to remove the offensive display from the public courtroom. HCCLA saw no alternative but to file a formal complaint with the Commission. And, thankfully, the Commission took action and issued its reprimand.

Many thanks to Tyler Flood for challenging the issue and providing us with great documentation of the conduct. Thanks to Robert Fickman, Andrea Podlesney, and Mark Bennett for their fine work in drafting the grievance. Many folks came forward and provided the evidence and documentation to support the complaint. Thank you to all.

The body of the complaint and the letter from the State Commission on Judicial Conduct can be viewed and downloaded below.

The Houston Chronicle reported the private sanction on Saturday, February 27, 2016 on page B2.

Download (PDF, 9.77MB)

Download (PDF, 268KB)

Filed Under: appearance of impropriety, judges, judicial complaint, justice, Public Trust, transparency Tagged With: complaint, Judge Bill Harmon, Judge William Harmon, reprimand

DON’T TAKE YOUR GUNS TO TOWN

February 1, 2016 Leave a Comment

Don’t Take Your Guns to Town, by Robert Pelton (past president)

If Wild Bill Hickok was walking down the streets of Houston or Abilene or any other place in Texas with his guns, he would probably be approached by the police and arrested. Wild Bill has a concealed handgun license but Wild Bill doesn’t carry his pistols in a holster, he carries them stuck in a sash wrapped agun totinround his waist. Too bad he didn’t understand the nuances of the new open carry law, but then, who does?

Several months have passed since the law was signed giving law enforcement time to study and prepare for a freedom not allowed in Texas since after the War Between the States. But there is significant controversy about the new open carry law.

Growing up in Abilene we all watched John Wayne, Audie Murphy, Lash Larue and other war and cowboy movies, where the good guys fought for noble causes and always won the day. And once again we are returning to the days of wearing a holster on our hip. But it turns out carrying a gun is more dangerous than “The Duke” may have led us to believe. When real bullets fly real lives are impacted in ways not illustrated on the silver screen.

Guns sales are at an all time high. The murder rate has escalated in Texas and many other places. There were 283 murders in Houston in 2015; the last one was in a hotel on the north side of town. Today, citizens are fearful about where our communities are headed. We all want to feel safe in our homes and when out in public. As a result, many law abiding citizens are choosing to carry guns for protection.

Every gun owner should know the power they have to do either good or harm with the weapon they carry, and the risk they take by carrying. Unless a person has been in the military or worked in law enforcement, they may not be properly trained on how to defend themselves or use a firearm. And they likely have not truly grasped the potential consequences of that act. We all want to protect our families, friends, other citizens and ourselves from the bad guys, but before this happens you need to be prepared. Buying that new shiny pistol is exciting but before you carry or shoot it, remember that pistol is a tool – a dangerous tool. Get the right kind of pistol. Study it, examine it, read the instructions, and practice safely with it before you start toting it around.

For your own safety, as well as others, you should understand how to care for your pistol. One of my gun toting friends who usually carries a couple of pistols was bragging about being prepared. I asked him to let me examine the pistol he carried in his boot. It would not even work because it was so dirty. He was embarrassed. A retired Texas Ranger friend of mine who gave me his hideout gun showed me the one he now carried. He, too, was embarrassed as I pointed out to him it might shoot one time and no more because the slide was dirty. Recently in Abilene, a group of my friends were showing off their barbeque guns, those shiny big guns they wear when having a cook out. One of them was fooling with his pistol and it accidentally went off. Luckily it did not kill one of them.

Today, the new law allows a person with a concealed hand gun license to openly carry if it is in a holster. The Old West may have risen again, but the “basics” of carrying a gun will never be the same. With more freedom comes a greater responsibility to be well trained on handling and operating a weapon. It also comes with some legal risk to the carrier. The district attorney has graciously provided HCCLA an interpretation of what the law means. JoAnne Musick, as president of HCCLA, has provided us with the position of the defense bar. While they are similar in many ways, there is still some polite disagreement about what the new law means. Can a police stop you and ask to see your license? Yes! Should you show it to them? Yes! But what happens if you don’t? Well….it is a little unclear. This lack of legal clarifications as to the application of this law is a problem, and it will be for your future clients. We will only know the answers when someone is arrested and judged on the facts of their situation. Be aware that someone will be the guinea pig on which this law is tried and those yet-to-be-determined answers are defined. That person may be your client.

As lawyers, what do we advise our gun toting clients?  Make sure you have a good reason for openly carrying your shiny new pistol and that you have a concealed hand gun license if you intend to carry one. Be aware that you may, and probably will be, a target for law enforcement to stop and ask you questions. When the police may ask you if you have a permit be polite and tell them the correct answer. This is the moment where potential problems arise. Also be aware that if you are in the wrong place at the wrong time an outlaw may try to shoot you first because you are openly carrying a pistol.

We do know that Penal Code 46.02 still remains the law and allows gun rights to those individuals who do not have a concealed handgun license. The revisions that took effect January 1, 2016 now state that a person commits an offense if the person intentionally, knowingly, or recklessly carries a handgun in a motor vehicle or watercraft that is owned or controlled by that person at any time if (1) the handgun is in plain view, unless the person is licensed to carry a handgun and the handgun is carried in a shoulder or belt holster, or (2) the person is engaged in criminal activity, or (3) prohibited by law from possessing a firearm, or (4) a member of a criminal street gang.

Also note that even with a license a gun owners can’t waltz into just anywhere without taking notice of the posted signs. Gun owners and business owners alike should be aware of Texas Penal Code 30.06 which details the requirements for signs a business may display to prohibit guns on their premises. According to a “reliable and credible” law enforce source who shall remain nameless for his own protection, many of the signs posted by business owners are not even effective as they do not comply with the code. This may save your gun-slinging client but not your gun-shy business owner. Makes sure you have crossed all your “T”s and dotted all your “I”s before posting your sign and expecting it to be enforced.

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Penal Code 30.06

(a) A license holder commits an offense if the license holder:

(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2) received notice that:

(A) entry on the property by a license holder with a concealed handgun was forbidden; or

(B) remaining on the property with a concealed handgun was forbidden and failed to depart.

(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c) In this section:

(1) “Entry” has the meaning assigned by Section 30.05(b).

(2) “License holder” has the meaning assigned by Section 46.035(f).

(3) “Written communication” means:

(A) a card or other document on which is written language identical to the following: “Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a  person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun”; or

(B) a sign posted on the property that:

(i) includes the language described by Paragraph (A) in both English and Spanish;

(ii) appears in contrasting colors with block letters at least one inch in height; and

(iii) is displayed in a conspicuous manner clearly visible to the public.

(d) An offense under this section is a Class A misdemeanor.

(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

—

AS WE ENTER THE NEW YEAR with the open carry law, there are several things to remember: safety first. A firearm is designed to kill. Yes, there are some people who skeet shoot or go to a gun range but a firearm is designed to kill. If you have ever been in law enforcement as a licensed peace officer or in the military, you will know the consequences of weaponry ignorance. Firearms are not games. They are designed to cause destruction of a target. And secondly, this new law could dramatically affect the status quo. Our clients need to understand they must make sensible decisions when choosing to carry. We know many of them will not. That is what keeps us in business. Still, we as lawyers are also in the law enforcement business. Our job is to make sure our clients are legally arrested and searched. This job is made more difficult now because no one knows for sure the details to this new law. Johnny cash sang a song, DONT TAKE YOUR GUNS TO TOWN. I RECOMMEND YOU READ THE LYRICS OR LISTEN TO THE SONG before you take your guns to town. Think long and hard about the consequences. (https://www.youtube.com/watch?v=KMMp_llzBT4)

 

Do you want to go away peacefully in the night or “Die with your Boots On??” Do you want to be judged by 12 or carried by 6?

“I have a very strict gun control policy. If there is a gun around, I want to be in control of it.” – Clint Eastwood

“There are no dangerous weapons. There are only dangerous men.” – Robert Heinlein

“A man’s rights rest in 3 boxes. The ballot box, the jury box .and the cartridge box.” – Frederick Douglas

This is all very serious business and when a shooting happens, many people may “beat the rap but not the ride.”

 

Filed Under: clients, constitution, open carry, texas gun law Tagged With: hccla, houston, open carry, right to carry, robert pelton, texas gun law

Brandon Ball: a profile

January 14, 2016 Leave a Comment

brandonballBorn in Abilene, military brat Brandon Ball, has lived in numerous countries. He was a correctional officer for the Texas Department of Criminal Justice (TDCJ) while attending Sam Houston State University before becoming a parole and probation officer for the city of Las Vegas. He is a graduate of the Thurgood Marshall School of Law.

 

Q: What was it like being a correctional officer at TDCJ?

A: It’s an institution. It wasn’t like I dreamed it was because it wasn’t about the rehabilitation. It was about running the numbers and getting the right number of people moving along. People there are trying to do their job and not make waves. People go along to get along. I saw a lot of things that I did not like there. It’s not like in the movies where it’s easy to do the right thing. It’s hard to be brave.

 

Q: What did your job as a parole and probation officer in Las Vegas teach you?

A: It’s not easy being on parole. When someone gets released, they would be rated on whether they would reoffend. My idea was that I wasn’t planning to send them back to prison. I was trying to help them and focus on the rehabilitation. But it’s not easy for them to integrate back (into society) because the resources are limited. They don’t come out with a job and they don’t come out with a vehicle. They don’t have that family support system that a lot of us have.

 

Q: How has your experience with the inmates and parolees helped you in your criminal defense work?

A: The only difference between you and them is they got caught and you didn’t. They were stupid and didn’t think and got drunk and made a mistake. Someone who’s a juvenile misses school and gets suspended and then they fall behind and get expelled. Then they can’t get into college and because they didn’t go to college, they can’t get a job. It becomes a cycle. The indigent defense system is set up for you to fail. You read about these lawyers who represent hundreds of defendants a year. There’s no way they spent any amount of time on those cases. Someone who gets a conviction on their record for an assault family member is going to spend the rest of their life being known as a criminal. People judge you and that judgment hinders them from future employment. It becomes a cycle.

 

Q: Why did you want to go to law school?

A: My mother always believed that if you spoke things aloud, it comes to existence. When I was little, my mother told me I would grow up to go to college and be a doctor, an engineer, or a lawyer. I wasn’t any good with math, so I couldn’t be a doctor or an engineer. Matlock was one of my favorite shows and people kept telling me I should go to law school because I loved to argue. I applied to 18 different law schools and didn’t get in the first time and was going to give up. Then my friend, Chaunte Sterling, encouraged me to reapply and I reapplied the next year and got accepted.

 

Q: Did you plan on becoming a criminal defense lawyer?

A: I didn’t plan for what I was going to study before law school and I didn’t plan after. I knew I had a background in criminal justice and I wanted to do something different. So I graduated and did some family law and heard about the FACT program (Future Appointed Counsel Training Program) and Gideon’s Promise and it changed my views. Before, I was scared to do criminal defense because I didn’t have a mentor coming out and didn’t want to send someone to prison for five years because I didn’t know what I was doing. The FACT program and Gideon’s Promise showed me that indigent defense is the new civil rights. The amount of people who don’t get adequate representation is astonishing. From that point on, my viewpoint on wanting to practice criminal defense changed and I’ve been focused on that area since.

 

Q: What do you wish the older and more experienced attorneys would know about your generation?

A: It’s different now for new lawyers coming out. Twenty-five to thirty years ago, it was easier to get cases and clients and take cases to trial. I wish they would be more patient with us and give us more of their time. It’s hard to be that young attorney that’s being annoying because they want a mentor. It’s not easy asking someone for help. To get a real mentor, you have to annoy the person: you’re asking them questions, you’re constantly calling them, sending emails. I wish they understood that it’s hard for the younger lawyer to want to be that annoying.

 

Q: What lessons do you live by as a young attorney?

A: All you have is your name and word. If you say you’re going to do something for a client or another attorney, and you don’t do it, they remember that. To that person, you’re going to be put into the category as someone that can’t be trusted. Once you lose their trust, that’s it. Read case law. It’s important to learn what the law is and the caselaw changes. As a young attorney, you don’t know anything and one place to start is to read caselaw. It helps you know and recognize what you don’t know. Never stop learning and never be afraid to learn. The law changes; the facts change. You forget things. Twenty years ago, DWI cases, DNA and eyewitness identification cases were not getting tried the same way as they are today. Social media wasn’t around. Society is always changing and we have to adapt and apply it to the courtroom.

 

Q: Do you think the criminal justice world treats black attorneys differently?

A: From the standpoint of potential clients, yes. If you put a black lawyer next to a white one, without knowing anything about either lawyer, the white lawyer will get picked more often than not. The same is true regardless of whether the client is black or white. It is the same for women versus men lawyers. That’s just how it is. As a black attorney, I understand I can’t afford to slip up like one of my white counterparts. Some folks don’t want to talk about that but I think it’s a healthy discussion.

interview by Thuy Le

 

Filed Under: Members Tagged With: brandon ball, member profile

Practice Pointer: Free Legal Resources

January 11, 2016 Leave a Comment

Free Legal Resources for the Attorney
by Thuy Le

A simple tablet with a few apps can help an attorney walk into a courtroom with confidence knowing that they have the facts of their client’s case and the law at their fingertips. Following are the top FREE apps that are available for both iOS and Android that can help keep an attorney organized and prepared for court. I’ve excluded the free apps that require a subscription (e.g. Westlaw/Lexis).

Dropbox:

One of the easiest ways to access your clients’ file in court is not to carry around a folder but to have it uploaded to Dropbox. With Dropbox, you can upload pictures, audio files, and documents and access them anywhere in the world. Want to remind the prosecutor that your client’s 911 call is completely different than what is written in the offense report? You can link the file to an email to the prosecutor for them to listen or you can pull up the relevant portion on your tablet and show them in court. Dropbox allows you to link large files and email the link. This is perfect for files that are too large to attach to an email. If you want added security, I suggest using an encryption service for your files before upload.

Evernote:

This award-winning app allows you to capture recordings, notes, and website links and organizes everything into a searchable database. This is perfect for when you’re doing research and want to keep everything organized. Evernote at its most basic allows you to write down notes and reminders and then lets you later pull it up in a searchable database. However, some of the most useful features of Evernote is the email forwarding, the photo capture, and the geocache function. Email forwarding allows you to forward your emails from one of your server accounts to Evernote to keep it organized. For example, your client Keanu Reeves is sending you emails asking about his court date for his aggravated assault charge. Instead of keeping track of the emails in your email server, you can forward it to Evernote and it’ll organize all your emails, documents, invoices, and John Wick pictures into a searchable Keanu Reeves file.   The photo capture feature allows you to turn pictures into documents and converts business cards into a format that you can later search. The geocache function allows you to pull up notes based on where you created the note. Can’t remember which file or memo you were working on in Austin? Pull up the geocache location function on Evernote and it’ll pull up all the notes created in Austin.   Evernote will also let you dictate your notes for those who can’t or don’t like to type. Evernote is perfect in keeping everything organized by keywords, dates, or location. Best of all, you can still access your notes, emails, and files when offline.

Fastcase/Casemaker:

These are two different free apps that pulls up caselaw. Casemaker is available for free for Texas attorneys. Fastcase uses a boolean search field to pull up caselaw by search criteria. Does the judge during trial want caselaw about whether an officer can enter a home where he receives a noise complaint? Enter those search terms into the search bar and it’ll pull up the cases most relevant to the search terms. You can also sort the results by most relevant or date or even specific courts. I’ve used it to find specific rulings by certain judges to see how likely they would rule on a certain issue. Fastcase will highlight the search terms so you can scan to see if the case is relevant. Of course the more specific the search terms, the better the results.

LawStack:

This free reference allows you to access the U.S. Constitution, the Federal Rules of Procedure and Evidence, the Texas Penal Code, the Texas Code of Criminal Procedure and about a hundred other codes, statutes, and documents statewide and federally. This database is searchable and is most helpful when you can’t quite remember the specific sections of the code. Want to know how the issue of self defense is raised? You can type in “self defense” in the search bar and it will pull up all the sections in the Texas penal code, Texas code of criminal procedure and any other database you specify to search for those teams. This has been a quick way for me to look up the law without having to carry around a codebook or read one of the outdated prosecutor’s codebook left in the courtroom.

ISCOTUSNOW:

The Oyez Project has teamed up with the Chicago-Kent College of Law to create this app to help you understand the Supreme Court and its rulings. This app has the most recent Supreme Court rulings and visually organizes it in a way that’s easy to understand. Pictures of the justices who voted for or against a case, who wrote the majority and minority opinions, and who joined whom in the opinions are laid out graphically so it’s easy to follow. There’s also the transcript and the briefs available for the cases. But the best feature is the audio of the oral arguments for the cases. The audio can be downloaded or streamed and is laid out Twitter-like with the Justices’ and attorneys’ pictures next to the transcript of the argument. The app also tells you what cases are pending before SCOTUS and the constitutional arguments made the parties. The search bar allows you to quickly pull up Supreme Court cases based on topic. This is useful if you can’t remember, but want to find the case, that dealt with whether one has an expectation of privacy in a phone booth.   I’ve wasted hours reading and listening to the audio of the arguments on the most recent major Supreme Court rulings. Overall, one of the best apps in helping you understand and learn about the Supreme Court.

Filed Under: Defender, practice pointers Tagged With: criminal defense, free legal resources, lawyer tips, lawyers, members, practice pointer, technology, thuy le

“Open Carry” NOT “Papers Please”

December 30, 2015 Leave a Comment

Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.Your-Papers-Please-300x175

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

____________________

[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

 

View and Download Devon Anderson’s Advisory Opinion Here

Download (PDF, 941KB)

Filed Under: constitution, police, politics, prosecutors, search and seizure Tagged With: constitution, Criminal Justice, devon anderson, district attorney, handguns, harris county, Harris County District Attorney, hccla, law enforcement, open carry

Camp Gladiator FREEBIE

December 28, 2015 1 Comment

Through our partnership with Camp Gladiator, here is your chance to receive a free 4 week camp beginning in January!Slide1

It’s time to work off the holidays and sharpen your mind and body through exercise – and for FREE! Try it out and let your trainer know you are with HCCLA – if you decide you like it, you will qualify for discounts on continued camps under our partnership.

If you have any questions, call or email our trainer
Jessica Leonard
jessicaleonard@campgladiator.com
(281) 736-4232

Filed Under: Uncategorized

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