FORT WORTH COA DISMISSED MURDER PROSECUTION DUE TO PROSECUTOR MISCONDUCT DURING TRIAL

The Fort Worth Court of Appeals issued a second opinion on remand from the Texas Court of Criminal Appeals concerning alleged misconduct by a Tarrant County Assistant District Attorney. For the second time, the Fort Worth Appeals Court found the prosecutor's trial tactics to be intentional and/or reckless prosecutorial misconduct such that jeopardy attached after the trial judge declared a mistrial. In particular, the court cited the prosecutor's tactic of repeatedly commenting on the Defendant's invocation of her right to remain silent as intentional or reckless misconduct.

Although the trial Judge, Judge Sharon Wilson, found that the prosecutor's actions did not amount to reckless or intentional misconduct, the Court of Appeals found that Judge Wilson abused her discretion in this regard. The Court of Appeals dismissed the pending indictment against Ms. Lewis.

THE CASE WAS GOING BADLY FOR THE STATE

The Court of Appeals noted in it's analysis that "The case was going badly for the state." The court noted that the prosecutor had failed to call the responding or investigating officers to testify and failed to offer the Defendant's prior statement into evidence before the Defendant took the witness stand. Once Ms. Lewis testified that the complainant had twice raped her and that the weapon accidentally discharged, the prosecutor twice attempt to cross-examine her with her refusal to talk to the investigating detective instead of impeaching her with her prior statement. A link to the opinion: Texas Judiciary Online - HTML Opinion

TEXARKANA COA REVERSES CONVICTION ON CHILD PORN CASE, BAD SEARCH WARRANT (Elardo v. State)

"Reliable Source" is reliable because the source is reliabe . . . get it?

Mr. Elardo was convicted of multiple counts of child porn possession and sentenced to 20 years TDC.

The daughter-in-law of Mr. Elardo's wife tipped off police to child porn in Mr. Elardo's home. The police went to their local Justice of the Peace (not licensed to practice law) who signed their search warrant. The search warrant stated that the informant was a "reliable source", but stated no other facts in support of this contention. Justice Ross wrote that such a statement was conclusory without any "basis of knowledge" contained in the search warrant indicating the trustworthiness of this informant. The State urged the court to apply a more relaxed standard on the reliability issue because the informant was a private citizen whose only contact with the police was to witness a crime. Justice Ross declined, noting that there is nothing in the search warrant affidavit that puts this informant into the good samaritan category of tipster.


Texas Judiciary Online - HTML Opinion

"DEGARMO DOCTRINE" ON THE WAY OUT?

Are appellate rights waived if a Defendant is convicted and he or she admits guilt in punishment? In Degarmo v. State, the Texas Court of Criminal Appeals ruled that a Defendant who admitted guilt in the punishment phase of his trial could not later appeal based upon insufficient evidence.

The Corpus Chrisi Court of Appeals recently rejected the "Degarmo Doctrine." In a well reasoned opinion, Judge Garza noted that the Court of Criminal Appeals' 1985 opinion was really just dicta on the waiver issue and declined to apply this oft cited and feared rule.

I feel confident that the Texas Court of Criminal Appeals will weigh in on this issue. Read the opinion below:

Texas Judiciary Online - HTML Opinion

ABC News: Judge Sentences Spammer to Nine Years

This is the first felony prosecution resulting in conviction against a spammer for junking up your inbox. However, it doesn't sound like the judge is very confident the conviction will survive appeal.

TEXAS EXPUNCTION OF CRIMINAL RECORDS

Everyday I am asked whether someone is eligible to have their criminal records expunged in the state of Texas. The following is a dallas criminal attorney summary of the laws in the state of Texas concerning expungement and the newer practice called Petition For Non-Disclosure.

WHAT IS AN EXPUNCTION?

Upon the petition of a criminal defendant, a court can direct certain law enforcement agencies to destroy all records associated with an arrest and subsequent prosecution. Many times the court will specifically direct law enforcement agencies to destroy jail records, police reports, prosecution reports and court files. In addition, a successful expungement petitioner, can legally deny ever having been arrested for or charged with the criminal offense for which he is receiving the expunction.


WHAT IS A PETITION FOR NONDISCLOSURE?

Upon the petition of a criminal defendant, a court can direct certain law enforcement agencies to refrain from disclosing to any third party any criminal records associated with an arrest, prosecution and deferred probation. A successful petitioner can legally deny the existence of his arrest, charge and deferred probation. The order requires that any third party who buys criminal history information from Texas remove that information from their databases. If these third party vendors do not do so in accordance with the court’s order, they would be subject to civil penalties. Therefore, website such as PublicData.com would be required by law to remove criminal history information subject to the court’s nondisclosure order or face civil penalties.


Expungement of Criminal Records


Dismissed Case or Grand Jury No Bill

If a case was dismissed by the District Attorney’s office or No Billed by the Grand Jury, the first thing to do is find out what the statute of limitations is for the particular offense. The statute of limitations usually begins to run on the date of the offense. The records can be expunged upon the expiration of the applicable statute of limitations. For example, the applicable statute of limitation for any misdemeanor in Texas is two years. Therefore, if a misdemeanor assault case was dismissed more than two years ago, any record associated with that case can be expunged.

For felony offenses that were no billed by a Grand Jury (the Grand Jury refused to indict), the same rule applies. The limitations period for felonies range anywhere between five years and ten years. However, some felonies such as Murder do not carry a limitations period. Upon the expiration of the applicable limitations period, the felony case can be expunged.


Exonerated Defendants

If after a trial on the merits of any criminal offense in Texas the judge or jury returns a not guilty verdict, that Defendant is eligible to have an expunction.

Petitions For Nondisclosure of Criminal Records

Successful completion of deferred adjudication probation is the key to opening the door to a Petition For Nondisclosure (“PFN”). A petitioner is NOT eligible for a PFN is he was placed on regular probation or was placed on deferred adjudication and later found guilty by the court during probation.

What is deferred adjudication? There are two types of probation. Regular probation is a conviction in that the court actually finds the defendant guilty and suspends imposition of the jail sentence for a period of time. Under article 42.12 of the Texas Code of Criminal Procedure, a Texas Judge can alternatively place a defendant on probation for a period of time and DEFER any finding of guilt unless and until the defendant successful completes the probation. If the defendant successfully completes probation, the court will dismiss the case. It is critical that a potential petitioner obtain the judgment and sentence for their case to determine whether they received deferred adjudication probation or regular “conviction” probation.

For most misdemeanors, a defendant is eligible for their PFN immediately upon the successful completion of their deferred probation. For some misdemeanor offense such as sex-related offense (indecent exposure or public lewdness), there is a five year waiting period. During this period, the defendant cannot be convicted of or placed on probation for any offense other than a traffic ticket.

For all felonies in which the defendant successfully completed his deferred probation, the waiting period is ten years. This waiting period also operates in the same manner as described above regarding misdemeanors. That is, the successful probationer cannot have had a conviction or probation for any offense other than a traffic ticket during the ten year waiting period.

The only exception to the above is that if a defendant has previously convicted of or placed on probation for any offense which requires registration as a sex offender. In addition, if the defendant has been convicted of or placed on probation for any of the following he will never be eligible for a PFN:

• An offense with an affirmative finding of family violence.
• Violation of a Protective Order
• Stalking
• Aggravated Kidnapping
• Murder
• Capital Murder
• Manslaughter

I hope the above will help you evaluate your potential success on your Petitions of Expunction and Petitions for Non-Disclosure.

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