Houston Criminal Law Journal

When Do Car Crashes Become Criminal In Houston?

Mario Madrid — Wed, 03 Mar 2010 15:55:58 -0600

You've no doubt read the recent news regarding Toyota Camry recalls. I came across an online story of a man convicted of vehicular manslaughter in Minnesota. Koua Fong Lee was sentenced to 8 years in prison after being accused of speeding and crashing into cars in front of him killing 2 people and paralyzing a third person. Lee contends that his car sped up on its own and is now asking that his 1996 Toyota Camry be reexamined. Toyota has issued a recall for several models and years of its vehicles, but the 1996 Camry is not one of them.

The case highlights the challenges with prosecuting and defending car accidents that may or may not rise to criminal negligence. The Houston Press recently wrote a story regarding the Harris County District Attorney's Office prosecution of car accidents that they believe rise to the level of Criminal Negligent Homicide.

Catherine Evans, Chief of the Harris County District Attorney's Office Vehicular Crimes Section, is quoted explaining the factors that are taken into consideration when deciding whether to charge someone. "What were the ambient conditions? What was the weather like? The lighting, the equipment on the different vehicles if you had different vehicles involved. You're also looking at the behavior and the actions of the victim, the other driver in the case, because it's often a situation of two people making a series of bad choices or acts, so you need to have an understanding of what caused it or how those events contributed to the crash."

If you live in a big city like Houston that is big on highways and not so big on public transportation you will spend a significant time on the public roads. Accidents happen everyday all over town. Sometimes the result of these accidents is death. But is the death as a result of an accident criminal? It could be. Drive safe.

How About A Different Track For Houston DWI Cases?

Herman Martinez — Tue, 02 Mar 2010 21:27:07 -0600

It seems like the Harris County District Attorney's Office is not budging from the second court date DIVERT decision put in place last month. This decision requires that anyone wishing to enter the DIVERT program must make that decision by their second court date. Unlike other misdemeanor charges this seems inconsistent in respect of how quickly a decision needs to be made. In response, the Harris County, Texas misdemeanor judges should recognize the unfairness of this policy and allow these cases to proceed down a different track than the other cases that are heard in their courts. While this has worked well for several years the new DIVERT program throws things off because it is unlikely that an attorney that is handling a DWI case that is eligible for the program is able to make a full assessment before the second court date. In a perfect world the ALR hearing would be concluded, the video would be reviewed, testifying experts will give their input, the offense reports will be completed and will be in the possession of the lawyer handling the case. A two week reset does not come close to allowing all of this to occur because of the time constraints. I would suggest that cases that are deemed to be DIVERT eligible be given a forty five day reset time frame from their initial court date appearance so most of the preliminary investigation can be accomplished and all parties may make an informed decision before proceeding.

Houston Rodeo DWI Round Up

Herman Martinez — Fri, 26 Feb 2010 14:50:39 -0600

I am not sure if Pat Lykos, Harris County District Attorney, will be attending the Houston Rodeo this year, but if she is she most likely is hoping to rope some drunk drivers in during the month of March. The Harris County District Attorney's Office,(HCDAO) has expanded its "no refusal weekend" once again during the rodeo. Initially, this program was implemented during major holiday weekends. Subsequently, it has expanded at will. Today, the HCDAO is announcing a "spring no refusal." Their aim is to protect the added travelers during the various events that are occurring at this time of year like the Houston Rodeo, St. Patrick's Day, and "March Madness." The "no refusal weekend" was implemented to make Harris County, Texas residents think twice before driving while intoxicated. That message is being diluted by having a "no refusal weekend" becoming the norm. I would be curious to see the statistics of DWI arrests from a regular weekend compared to one of the "no refusal weekends." I have not seen any data that suggests that these no refusal weekends decrease drunk driving. I am willing to wager that what it does increase is the number of Houston DWI Task Force man hours, and therefore cost the city more money then it should be paying out. All things considered, the "no refusal" sounds great as a press release and sound bite, but is doing little to achieve the intended goal or reducing drunk driving in Hourston.

All Potential DIVERT Candidates Should Get PR Bonds

Herman Martinez — Tue, 23 Feb 2010 23:45:41 -0600

One of the requirements of the Harris County District Attorney's Office for anyone arrested for drunk driving to be considered for the DIVERT program is that they do not have any prior incidents with law enforcement. This is the initial consideration for anyone that is going to enter the DIVERT program. When a person is arrested for any crime in Harris County, Texas an appropriate bond is to be assigned. Typically, a first offender's bond for a DWI in Houston, Harris County will be $500. I have noticed lately that more personal recognizance bonds are being given for first time offenders. This should be the rule instead of the exception for anyone that is a candidate for DIVERT in Harris County, Texas. Some may say that if someone can not make a $500 bond they will not be able to pay for all the fees associated with the program. Nonetheless, Judge Roger Bridgwater indicated at the initial DIVERT meeting with the defense bar that there would be a sliding scale for those that could not afford all the fees for the DIVERT program. Granting a PR bond would offset the future costs for the person, allow them to be on bond while going through the DIVERT process and not have someone incarcerated for something that is going to take months to resolve.

Drunk Driving Acronyms

Herman Martinez — Tue, 23 Feb 2010 23:26:01 -0600

A DWI offense report made by a police officer will contain several acronyms that are unfamiliar to the general public. Here are some examples: The officer will write that the person had a "SOAB". That means that they smelled a strong odor of alcohol emitting from a person's breath. "RBSE" means that the person had red blood shot eyes. The report could also state that the person did a "FSTS". This is field sobriety tests that consist of the "HGN", horizontal gaze nystagmus, the "W&T", walk and turn and the OLS, one leg stand.

Help Me Get A Non Disclosure For My Drunk Driving Deferred Adjudication

Herman Martinez — Tue, 23 Feb 2010 22:53:54 -0600

I have had a few calls regarding the title of this blog recently and so I want to address the issue here. If you have been convicted with drunk driving, DWI or DUI in the state of Texas in the last ten years even though you believe that you received a deferred adjudication you did not. While it seems hard to believe that you could receive a deferred adjudication for something as serious as sexual assault, a DWI charge is one of the handful of crimes that this is specifically not eligible for deferred adjudication. Therefore, your driving while intoxicated (DWI) case is not eligible for a motion for non disclosure (allowing the sealing of your criminal history) because it was never a deferred adjudication.

Are You Really Qualified To Be A Texas Criminal Court Judge?

Herman Martinez — Wed, 17 Feb 2010 18:24:02 -0600

Early voting for the 2010 Texas primaries has started this week. I am not going to suggest what candidate to vote for, but I have noticed some things that annoy me. First and foremost, a candidate for any criminal bench should be a practicing criminal attorney. It is arrogant that someone that has not worked as a defense attorney or a prosecutor believes that they can magically put on a black robe and be able to preside over criminal cases. Also, any lawyer that is running for a felony court bench should routinely be handling felony cases as part of their practice. Unlike a misdemeanor court the consequences in a felony are much more severe. We are talking about the potential of someone spending life in prison in a felony court. If a person has not dealt with these types of cases as a lawyer on either side of the bar what makes them think a week at a judicial school will give them the knowledge. A person may take a scuba class during their Mexico vacation, but that makes them capable of diving for the remains of the Titanic. Lastly, if a person is not qualified enough to pass the felony appointment test they have no business being a felony judge.

DWI DIVERT Update...

Herman Martinez — Mon, 15 Feb 2010 15:20:22 -0600

Now that the DIVERT program in Houston is about six months old attorneys are coming across several issues. Several attorneys have told me that their clients are not in compliance with the DIVERT contract which, according to the DIVERT contract these defendants are subject to jail time. These attorneys are hopeful that they will be able to keep their clients from going to jail. Will the Harris County District Attorney's Office (HCDAO) enforce the agreement? What will the judge do if they have a hearing on the matter? Is the agreement even enforceable? I am curious as to what the final result will be in the upcoming cases.

Mark Bennett provides another opinion in his blog as to why the HCDAO is changing the DIVERT program so capriciously. He concludes that the HCDAO doesn't know what they are doing with regard to the DIVERT program.

Also, Dane Johnson writes in his blog that the HCDAO is reconsidering the two week reset rule that was implemented last week. A rule that did not make any sense to anyone in the misdemeanor division in the first place and caught everyone else off guard.

Houston, Harris County, Texas Marijuana Possession Arrests Causing Unnecessary Jail Overcrowding?

Herman Martinez — Wed, 10 Feb 2010 17:39:58 -0600

While there is been a lot of talk about building a new jail in Harris County, Texas there has not been much discussion about reducing the amount of people that are in jail today for a low level misdemeanor offense such as marijuana possession. I have stated before that the law in Texas allows for a police officer to cite a person to appear in one of our fifteen County Criminal Court at Law for marijuana possession. The Harris County District Attorney's Office (HCDAO) has openly refused to allow officers to do this for the past two years despite the aim of the law being reduction of jail overcrowding. The HCDAO prides itself on following the law, but for some reason is not doing it in this instance. Meanwhile, people are getting arrested and await a court date while being housed in the overcrowded Harris County jail. Why is the public allowing this to happen if current public opinion is against the policy of jail time for small amounts of marijuana possession? Probably, because the media is not reporting this discrepancy as they should.

It is time that Sheriff Adrian Garcia, all 15 misdemeanor judges, and the Harris County District Attorney, Pat Lykos start allowing officers to write citations for low level marijuana possession like other counties have been doing for a while now. Alternatively, if the HCDAO opposes them on this issue pretrial bonds should be granted for every person that is charged with this crime. A pretrial bond will insure that someone is not jailed for something that the law clearly states may be handled by a citation. In turn, this may reduce the amount of people that sit in the county jail. I can not believe that this is that difficult to implement.

The Big Game An American Tradition Of Alcohol Related Crime

Mario Madrid — Sun, 07 Feb 2010 14:30:30 -0600

Today is Super Bowl Sunday. The Indianapolis Colts and Peyton Manning take on Drew Brees and the New Orleans Saints. The day has become an American holiday except no one gets the day off on Monday. I'd like to propose the movement to make the day after the Super Bowl an official holiday. Everyone really enjoys themselves on Sunday and needs a day of recovery. Lets be honest, their isn't a whole lot of workforce production the day after the Super Bowl. Who would really be opposed to making it a holiday?

Another unfortunate tradition regarding the Super Bowl is the crime that follows. Its like the soccer hooligans in European football. I guess whether you call it football in Europe or American football here, drunkenness and thuggery will follow. Its inevitable and sad that Assaults and DWIs and other crimes follow the festivities. Here's to hoping that everyone behaves responsibly. Who Dat? Go Colts. May the best team win, the commercials be entertaining and The Who not put us all to sleep.

Get A Ride To Avoid A Drunk Driving Charge In Houston

Mario Madrid — Sun, 07 Feb 2010 14:05:03 -0600

Houston has a lot of great qualities but public transportation wouldn't make the top ten list of good things about Houston. If you plan on going anywhere in Houston you are probably going to have to drive.

It seems recently that we have had an uptick of clients who have hired us after having been arrested for drunk driving on Washington Avenue. If you've even had one drink, I wouldn't suggest going near Washington Avenue if you are driving. Either choose a designated driver or call a cab. Another alternative would be to hire a shuttle service. A shuttle service called the Washington Wave advertises a shuttle up and down the bars on Washington and Midtown. I am not affiliated with the company nor endorse them, as I have never used them, but the concept seems like a great idea.

The bottom line is, if you live in Houston, figure out a safe and responsible plan for transportation when you are making plans to hit the town. The alternative may be an arrest leading to a Houston DWI.

What Someone In Houston, Texas Could Learn From The Ten Co-Defendants In Haiti?

Herman Martinez — Sun, 07 Feb 2010 07:28:43 -0600

I would think that most people would realize that having one criminal attorney for multiple people accused of a crime would be a bad idea. In fact, when co-defendants attempt to hire me I go to great lengths to dissuade them for doing this because of the potential conflicts that may arise. Perhaps criminal lawyers in other countries do things differently, but a criminal attorney in Houston, Texas would advise against two defendants having the same lawyer much less ten defendants. I am confused why then ten American missionaries that were arrested in Haiti hired only one attorney to represent them. It is to be expected that they have different stories about how they got into their predicament as well as how much they knew about the plans to take the children from Haiti. In fact, there are some in the group that feel that their side of the story is not being told accurately. They finally came to their senses this week and fired their Haitian lawyer. Hopefully, each will find their own legal representation.

The moral of the story is if you find yourself arrested in Houston with someone else get your own Houston criminal attorney. A lot of times a person will offer to split the costs for the attorney, but I would advise to go against this route because the lawyer should be someone you choose voluntarily and only has your interests in mind.

The Houston, Harris County DWI DIVERT Changes Again!

Herman Martinez — Fri, 05 Feb 2010 15:27:47 -0600

I understand as a DWI attorney that the Houston DWI DIVERT program is a novel concept for Harris County,Texas. I further recognize that with a new program tweaks will be made to make improvements. However, it seems that the Harris County District Attorney's Office (HCDAO) is continually making changes to this program. This causes confusion to all the parties involved. Whether you are misdemeanor judge, a misdemeanor prosecutor, a DWI attorney, or an accused changing the rules weekly leaves everyone uncertain as to how to proceed.

I have been patient with the program up until now. This week the HCDAO decided that a defendant needs to decide if they want to be considered for the DIVERT program by their second court setting. This is patently unfair and lends itself to the biggest complaint against the program, that is coercive.

My non-DWI clients do not need to decide anything within two settings, but somehow my DWI clients must make a life changing decision is less than a month now. That is unacceptable! Anyone that is a candidate for the DIVERT is someone that has never had contact with the police or the criminal justice system before their DWI arrest. They are afraid, confused, and intimidated by the system. This is not the best time for them to make such an important decision. Moreover, in a lot of instances a DWI attorney can not properly analyze a case after one setting. There are too many variables involved before they can properly advise their client.

This change will undoubtedly lead to another deluge of initial cases being screened in order to meet the two setting decision deadline since, being evaluated does not require the defendant from accepting the conditions offered. Ultimately, this will lead to more people rejecting the DIVERT program because no one enjoys being bullied into doing something. Perhaps, this is what the HCDAO is trying to accomplish. If it is they may find an increase in attorneys setting cases for trial.

The Houston DWI Divert Limbo...

Herman Martinez — Wed, 03 Feb 2010 15:49:32 -0600

As one of the few Spanish speaking DWI lawyers in Houston I represent a fair amount of Spanish speaking people that are charged with the crime of driving while intoxicated. While they may not speak English they are still lawfully residing in the United States. Some are citizens with others being resident aliens, or in the United States under some sort of Visa. Some are here with proper documentation while others are in the process of getting their status sorted out.

The Harris County District Attorney's Office (HCDAO) was initially clear about what type of people would be accepted into their DIVERT program, or so I thought. They were only accepting people that were in this country lawfully. One would think that this is straightforward enough, but actually like most other things with the DIVERT program this is ambiguous Now I have been told, if a person is in the process of obtaining his residency and not yet a citizen or permanent resident they will not qualify for the DIVERT program. While the Federal government allows them to stay in this country indefinitely the HCDAO does not allow them to enter the DIVERT program. This is difficult for my clients to comprehend when they are doing everything required of them by the Federal law. Is the HCDAO being too selective of people when it comes to their DIVERT program or just too exclusive since they do not have an issue allowing them to go on probation for the same DWI charge. Regardless, this leaves my clients in DIVERT limbo.

This Houston Criminal Defense Attorney Hates It When An Offer Is Withdrawn For No Reason

Herman Martinez — Tue, 02 Feb 2010 16:00:18 -0600

Part of my job as a Houston Criminal Defense lawyer is to negotiate on behalf of my clients. In all cases the assistant district attorney (ADA) handling my client's case will make us an offer to settle the case in lieu of a trial. In some instances, the ADA will not be able to make a reasonable offer. If we decide that we do not find the offer to be appealing we reset the case to come back another day. Most of the time, the ADA will keep the offer available and will let me know if they plan on withdrawing the offer at some point. It is not standard practice for an ADA to retract an offer before we formally reject it. This rarity occurs when a new ADA is assigned to a case and they disagree with the offer that was made by their predecessor. Recently, I had a client decide that they wanted to accept the last offer made by the ADA the day before his next court setting. Since it was not a jury trial and I did not know that a new ADA was assigned to their case you can imagine what happened next. The offer was doubled by the new prosecutor. Despite detailing to the new ADA how we arrived at the proposal the offer was withdrawn. I was surprised with their final decision and I was left trying to explain this to my client. This left us with the easy decision of rejecting the new offer and proceeding to trial. Fortunately, a person accused of a crime is presumed innocent and the fact that they were willing to plea guilty at one point is excluded from their trial.

This situation can happen in any type of case from a simple marijuana possession to a Murder. It is most likely to happen in a felony case.

Houston Super Bowl Parties Likely To Spike DWI Arrests

Herman Martinez — Mon, 01 Feb 2010 14:16:03 -0600

South Florida, where Super Bowl XLIV is being held this year is similar in many ways to Houston, Texas in that people often drive because they can not count on their local public transportation. I remember when I first moved from Chicago, Illinois to Miami, Florida when I was a young boy and was not able to do half the things I was use to doing upon my move since my new city did not have reliable public transportation. This meant I was unable to take the train to a baseball game during the summer months, not that South Florida had a baseball team at the time. As a child I had to really on my legs and my bike if I wanted to do anything outside my neighborhood. Despite the inconvenience, I thought it was great since the brutal winter months of Chicago were behind me .

This inconvenience however, leads to serious consequences if someone does not take precautions in respect to drinking and driving. I firmly believe if we had reliable public transportation in Houston, Texas our DWI arrests would decrease. Take into account the Washington Avenue area, the new place to go for young professional to "hang out" and drink. If someone wants to go this area to meet up with friends they must drive or get a taxi that is probably makes their night cost twice as much. Given the alternative, the Houston driver decides that he/she will monitor what they drink instead of incurring the cab cost. The Houston drinker must be more conscious of their alcoholic intake because they are the one that are likely will be doing the driving and the police have a close to zero tolerance for anyone that drinks and drives whether or not they are intoxicated. Unlike other major cities in the United States we do not have the fall back of public transportation in Houston.

Miami, Florida is a tourist attraction year round because of its tropical weather and beautiful beaches, but still does not provide the reliable public transportation for its visitors. I have a suspicion that a few people will be drinking during the Super Bowl festivities that will be ongoing throughout the week. Even if they are only attending the game they are unlikely to be staying near stadium since it is not located in a tourist area. Therefore, the majority of tourists will be driving. It is not a stretch that when a destination increases by over 250,000 people that are drinking and driving that DWI arrests are going to increase.

Houston We Have A Problem! I Thought We Had A Deal...What Happened?

Herman Martinez — Mon, 01 Feb 2010 13:51:21 -0600

As a criminal defense lawyer you need to display composure when things do not go your way. You need to be able to communicate logically with your client when they insist that they were not at the scene of the crime, even though the prosecutor has produced a picture of your client taken with a gun in their hand at the scene. Our clients need to know that we are on their side and ready to represent them to the fullest extent despite the allegations and evidence against them.

Recently, I had a difficult time explaining to one of my clients that after reaching an agreement with the prosecution, the judge rejected the agreement. In every case the there is a possibility that the judge may reject an agreed plea bargain. Within every plea bargain agreement there is language that allows the judge to reserve the right to reject the agreement. Luckily, the defendant is allowed to withdraw their plea if the judge decides to go this route.

Unfortunately, this was not any consolation to my client who, during a recent plea bargain, could not understand why the judge would not go along with the agreement. A plea bargain is not something that is reached easily or quickly. It is a long process and typically, it takes compromise between the prosecutor and the defense lawyer. The process goes something like this; the client comes to court several times and when they think the agreement is satisfactory to them they relinquish their right to trial in order to enter into the plea bargain.

It is extremely frustrating to all parties when a judge hears a short synopsis from the prosecutor about the facts surrounding the case and then decides that they will not accept the agreement that was reached. Now the client is frustrated and its back to square one. At this point, the client typically asks one of the following questions; why did you as my attorney spend all that time trying to reach an agreement with the prosecutor if the judge was going to reject it anyway? Why did I agree to pay back all the restitution that is owed? Why didn't you reach an agreement with the judge first? The answer is because the judge can and gives the final blessing to the plea bargain.

I understand that the judge's role is to determine what is in the best interest of society, but how can they determine that with only a couple of minutes of facts relayed by the prosecutor. At the very least, the judge should speak to both attorneys especially if they are leaning towards rejecting the plea bargain. It becomes an emotionally charged event because the client senses things are going badly. At this stage, their body language changes, they can not speak as clearly, and most of all they become nervous and confused about the proceedings. This in turn makes the judge less likely to accept the plea bargain because they tend to interpret this behavior negatively.

Confessions, Good for the Soul, Not Your Houston Criminal Defense

Mario Madrid — Sun, 31 Jan 2010 14:24:08 -0600

Confessing one's sins can help a person feel renewed. However if your charged with a crime, like take for instance, Capital Murder, it might not be a good idea to make that confession in the local newspaper.

Today the Houston Chronicle ran a front page story about the confession of a teenager. It wasn't about Lindsay Lohan in a Disney movie, rather if was the portrayal of an 18 year old charged with Capital Murder for allegedly killing a classmate's mother in a murder for hire killing. A few days ago the Chronicle ran a story of another accused Capital Murderer and his details of why he allegedly bludgeoned the mother of his children to death with a crowbar. A killing he claims was justified.

Memo to those accused of crimes, the Houston Chronicle isn't your friend and will not make things better for you. Read the Sports page, comics or whatever your interest is, but don't do interviews detailing your allegedly illegal acts. It might be a great read for everyone else but it will be detrimental to your defense.

A Happy Ending To A Houston Felony Case...

Herman Martinez — Fri, 29 Jan 2010 12:46:44 -0600

I am going to preface this blog entry by saying that I am not one to typically brag about myself on this blog, but this case warrants a mention. As a criminal defense lawyer in Houston, I hate to admit that most of my clients do not stay in touch with me until they need my help again or someone they know needs my help. Today, I was fortunate enough to receive some uplifting news from a former client's mother. Her son made both of us proud after he was able to secure a three year worldwide modeling contract. Previously, I was able to get a very favorable outcome on his felony case. This is one of the many reasons that I chose my profession to help others.

Could the New Texting While Driving Law Lead to More DWI Arrests in Houston?

Herman Martinez — Thu, 28 Jan 2010 15:25:21 -0600

I have mentioned that texting while driving is more dangerous then driving while intoxicated before on this blog. Studies after studies have shown this to be true. While Mothers Against Drunk Drivers would argue against that position it is clearly a problem throughout the United States. Not surprisingly, the federal government is formally banning truck and bus drivers from sending text messages while driving. It is only a matter of time before similar legislation reaches the state of Texas. Already small municipalities like West University ban texting while driving. So you better send those messages while you can or better yet wait until you arrive at your destination.

By having this law in effect it will arm police agencies with a another flimsy reason to stop someone while driving. Despite the unlikelihood that an officer will be able to prove that a person was texting when they were driving it will not matter because when a DWI arrest is made the driver rarely gets ticketed for the traffic violation. The alleged traffic violation is the probable cause for the stop.