Posts Tagged Criminal Defense

DWI and Punishment Before Conviction

In case you missed it, Casey Pachall, the starting quarterback for the TCU Horned Frogs, was arrested this week. As the article notes, and as any college football fan already knows, Pachall was suspended indefinitely from the team. Even a cursory scan of internet message boards will show that this is considered a “good thing,” impressing readers of such snap reactions that the conventional wisdom remains that an allegation of DWI should result in significant consequences.

The purpose of this post isn’t to argue with the conventional wisdom, rather it is to disaffect the reader of the notion that the legal requirement of considering defendants innocent before conviction does not, in reality, have great effect. The truth of the matter is those accused of DWI can potentially be punished long before conviction, even by the court. The example of TCU’s QB is not isolated, as you no doubt know of one or more people accused of DWI who lose their jobs outright, are suspended, or simply lose privileges at their place of employment. However, even the court system can mete out punishment before a determination of guilt is made.

An accused person can have his or her driver’s license suspended before conviction, can be ordered not to drink, can be ordered to pay for various costs of pre-trial release, can be ordered to pay for and use an ignition interlock, and in extreme cases can be required to wear a device which monitors whether alcohol is consumed at all. If the accused is unable to make a bond, in some counties he or she may also lose their freedom while awaiting trial. Even those able to make bond can be confined to house arrest, or simply given a curfew. Another possible condition of bond is mandatory enrollment and attendance of AA classes or other similar alcohol awareness/abuse programs. Many of these conditions of bond are rare, however, they are not difficult for the judge to impose, when he or she feels they are warranted.

What should you take away from all of this? Quite simply, and now more than ever, it is just not a good idea to grab even a drink or two out on the town without a plan on how to get home safely. The best advice from any DWI lawyer will not help you avoid the often nasty pre-trial consequences both inside and outside the legal system. Whether it is by getting a designated driver, utilizing access to public transit, or by sleeping it off on a friend’s couch, there’s no better way to prevent punishment for DWI than staying out of the driver’s seat.

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From the Court of Appeals for the First District of Texas

Johnny Louis Torres Jr. v. State of Texas – PDF of Opinion – Modified and Affirmed

The court’s opinion here deals with an appeal of a conviction for possession of a less than one ounce of cocaine, a state jail felony which was enhanced to a second degree felony by prior state jail convictions.   Mr. Torres pled guilty to the charge, and he was sentenced to twelve years confinement in TDC.

Torres appealed his conviction on two grounds.Firstly that that the trial court did not order a substance abuse evaluation as required by statute.  Secondly that he was given a sentence that was impermissibly long because the trial court did not make express oral or written findings on the enhancement paragraphs.

The appellate court overruled Torres’s first point of error because Torres did not raise that particular issue at trial.  Citing Alberto v. State, the court found that while a substance abuse evaluation is mandatory, a defendant must assert that right at trial or the claim is waived, and the claim may not be addressed on appeal. 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.).

Torres’s second issue, that his sentence was unlawfully enhanced, was also overruled by the court.   Without enhancement, a state jail felony conviction prison sentence is a maximum of two years, however, with enhancement the maximum is increased to twenty years.

Torres argues that he never pled true to any of the enhancement paragraphs making the enhancements invalid, however, the court found that Torres was properly admonished of the punishment range when he signed the plea agreement paperwork.  Torres also pled guilty to the indictment which contained the same enhancement paragraphs, which the court found also constituted a plea of “true” to the enhancement allegations.

The court found that even though the trial court made no express findings about the enhancement paragraphs, the trial court impliedly found them true.  A trial court can make an implied finding of true to enhancement allegations when the record establishes the truth of the allegation.  Appellate courts will find that such an implied finding was made if the punishment range is outside the range of the underlying offense, but was in the range for the enhanced offense.  The court found that Torres acknowledged the enhancements in the documents he signed and that the punishment was inside the range for the enhanced offense.  The court then found that the implied findings were supported by the record because Torres pled true to the offense which is considered to be enough evidence to support the enhancement allegation.  The court then modified the record to indicate that Torres pled true to the enhancement paragraphs.

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9th Court of Appeals Opinion – August 25, 2011

On August 25th the 9th Court of Appeals released several opinions and other rulings, one of which was not a memorandum opinion.

In re the Committment of Nelton Eugene Meyers – Affirmed

The 435th District Court, ever a busy venue if you’re predisposed to sexually assault people, has yet again received word from the 9th Court of Appeals to carry on – but make a couple changes. This opinion pulls no punches and delivers the evidence of Nelton Meyers’ prior transgressions, who was committed as a sexually violent predator.
In his first issue the defendant takes issue with part of the jury instruction, saying it caused reversible harm. It reads: “[that] beyond a reasonable doubt that Nelton Eugene Meyers suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence.” Meyers insists that the charge should instead track the statute and state: “Do you find beyond a reasonable doubt that Nelton Eugene Myers is a sexually violent predator.” The court does not rule on this point, instead simply points out that it has affirmed this jury instruction in prior cases. Then the defendant states that “likely” should replace “predisposed” in the jury charge. The court, having addressed this issue before, overrules it.

However, the court now states, for the first time, that the question which should be submitted is: “Do you find beyond a reasonable doubt that [Respondent] is a sexually violent predator?” Further, this charge should now include the “applicable statutory definitions of the statutorily defined terms.” So the defendant has shown that the court’s charge did not track the law as it should, but gets no satisfaction for doing so.

In his second issue the defendant states that there was not enough evidence to commit him. At trial defendant apparently admitted to committing “indecency with a child and aggravated sexual assault.” He had also been committed to a juvenile institution for attempting to rape his mother, and had admitted to liking seven and eight year old girls but preferred sixteen year old girls because he gets less prison time for them. Apparently, voices tell him to hurt people and sexually assault people as well. From time to time, the defendant apparently listened to these voices and as a child stabbed his step-father in the leg. Furthermore, the defendant has a history of alcohol and marijuana abuse. This all distills into a diagnosis of “pedophilia, nonexclusive type, attracted to females” and antisocial personality disorder.

The court finds this evidence, combined with more expert testimony, to be sufficient to withstand the commitment. And who could blame the 9th after reading that?

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