What does the U.S. Supreme Court’s Second Amendment decision in District of Columbia v. Heller mean for Texas weapons offenses? Absolutely nothing.
The District of Columbia bans ownership of all handguns and requires registration and licensing of all firearms kept in a person’s home. Heller applied for a license to keep a handgun in his home and was denied. Heller then sued, claiming the handgun ban and the licensing restrictions violated his Second Amendment right to keep and bear arms.
The Supremes agreed — but only to a point. The Supremes held that there is a Second Amendment right for individuals to keep and bear arms that is unconnected to service in a militia. They further held that banning an entire class a weapons that is traditionally kept in the home for self-defense infringes on that individual right.
However, the Supremes pointed out that the Second Amendment does not keep States from regulating weapons in a variety of ways. Ways in which a state could legally regulate weapons, the Court said, would include banning possession of weapons by convicted felons and the mentally ill, restricting the carrying of weapons in public places and “sensitive areas” (such as churches or schools), placing limits on the ability to carrying concealed weapons, prohibiting the possession of certain types of weapons thar are not traditionally used for self-defense, and imposing conditions and qualifications on the commercial sale of weapons. The Court further went out of its way not to address the legality of the D.C. licensing and registration requirements, but simply let them stand.
Texas currently does not have a ban on the possession of handguns in the home, or on any other weapon that the Supremes would consider to be “traditionally used for self-defense.” And the current Texas restrictions on carrying weapons in public and requirements for conceal carry permits look like they would pass constitutional muster under this decision. Anyone out there who was hoping for any wholesale change in Texas weapons law from this decision wil find Heller very disappointing.

We often represent people in Public Intoxication cases.  Clients often ask what it means to be “publicly intoxicated.”  That’s hard to define, but here’s a clear example:
According to the Palm Beach Post, a Florida man lost his arm early Sunday, after trying to swim across an alligator-infested canal.  Kasey Edwards, 18, was drinking with friends at about 2 a.m., when he decided to swim across Nubbin Slough, a canal that empties into Lake Okeechobee and that is notorious for being chocked-full of gators.  Some of his friends tried to persuade him not to take the plunge, but he dove in anyway.  After Edwards splashed into the canal, an 11-foot alligator rose up and clamped Edwards in its jaws.  Edwards fended off the attack, but not until after the gator had swallowed Edwards’s left arm.  Edwards was pulled from the canal by his friends and treated at a local medical center.  A local sheriff’s deputy who went to  the scene counted 13 alligators at the spot in which Edwards jumped into the canal.
Later, on several morning news talk shows, Edwards noted that he did not realize his arm was missing until he pulled away from the gator and tried to swim.  Edwards also blamed the incident on the over-population of Florida canals with gators and railed against animal rights activists who prevent alligators from being hunted in order to keep down their numbers.  Edwards called alligators “nuisance animals” and also noted that gators are more aggressive than they used to be.
This all begs the question:  Just how high does your blood alcohol level have to be for you not to realize that the gator has chomped off your arm until you try to swim away? Perhaps we will all find out if and when the lab results are released by the medical center.
But even without those results, I can say, based on my years of training and courtroom experience, that, if this happened in Texas, mosts juries would come back with a “guilty” verdict in a public intoxication case.  Just keep that in mind all you Guadalupe and Comal River tubers.  The gators have the right of way.  Be safe.

Once again, The Supremes have created more confusion than clarity.  The U.S. Supreme Court’s decision this week in Rothgery v. Gillispie County, Texas seems to raise more questions than it answers concerning the right to counsel in a criminal case.
Rothgery had been arrested and jailed in Gillespie County and mistakenly charged with Felon in Possession of a Firearm because his record incorrectly showed that he had a previous felony conviction.  At jail, Rothgery was taken in front of judge, who  found probable cause to believe that Rothgery comitted the crime and set bail.  Rothgery then posted bail.  At this point, Rothgery had not yet been appointed a lawyer.
While out on bail, Rothgery made several requests to Gillespie County for a court-appointed attorney, but was not given one.  After several months, a grand jury indicted Rothgery.  A judge then increased Rothgery’s bail and ordered that he be rearrested.  Once rearrested, Rothgery could not afford to post bail and sat in jail awaiting a court date.  A court later appointed an attorney to Rothgery.  The attorney then pointed out the mistake in Rothgery’s criminal record to the District Attorney’s Office and the case was dismissed.  Rothgery sued Gillespie County, claiming that he was entitled to an attorney when he was first arrested and taken before a magistrate, and, had a lawyer been appointed to him, that he would not have been indicted and rearrested on the erroneous charge.
The Supremes sided with Rothgery in an 8-1 decision, holding that the Sixth Amendment right to counsel attaches when a person is arrested and brought before a magistrate, even if no formal charge has been filed in court yet or no prosecutor is yet aware of the case. This seems like a pretty clear-cut decision until you read the concurring opinion of Justice Alito, who is joined by Roberts and Scalia.  These justices point out that, like the rest of the judges in the majority, they agree that the Sixth Amendment right to counsel attached when Rothgery was brought before the magistrate. However, they cryptically note that this attachment “does not mark the beginning of a substantive enititlement to counsel.”  In other words, the concurring justices seem to be saying that, even if there is a Sixth Amendment right to counsel from the time a person is arrested and brought before a judge, a person is harmed by a denial of counsel only to the extent that it prevents him from preparing for trial.
The Rothgery opinons leave a lot of unanswered questions:

1.   Rothgery never had a trial.  Does he get to win his lawsuit?;

2.   Will Rothgery unleash a new wave of ineffective assistance of counsel or denial of counsel claims?  For instance, let’s say you are arrested, brought before a judge and request counsel.  The judge then denies you counsel and you can’t make bond.  You are immediately taken back into the jail and questioned by the police after you have been denied counsel.  You make incriminating statements.  Does the Sixth Amendment demand that the statements not be used against you?

3.   And just when do you get this lawyer?  Before, during, or after the initial magistrate hearing?  Rothergy doesn’t say.

As the Zen Master said”  ” We shall see.”

Deferred adjudication in drug cases isn’t all it’s cracked up to be (excuse the bad pun).  A got a call from the father of a potential client in a Guadalupe County Possession of Marijuana case and was asked “Why does he even need a lawyer, isn’t he just going to get deferred adjudication anyway?”
Why does he need a lawyer?  First, because deferred adjudication isn’t automatic.  Second, because deferred adjudication isn’t a picnic.  And, third, and most importantly , because  deferred adjudication isn’t the magic wand for keeping one’s criminal record clean that most people think.
For better or worse, both Comal and Guadalupe Counties take misdemeanor drug cases seriously.  Deferred adjudication in a Possession of Marijuana case in either Comal or Guadalupe Counties, for example,  is typically supervised probation.  A person is drug-tested, takes classes, reports to a probation officer, pays fees over and above any fine and court costs, has to get permission to travel outside the county, can’t consume alcohol, often performs community service hours , and, of course, can’t commit any crimes.  Abiding by all of the conditions can be expensive and can take a lot of time away from work. school, or family.  Violate the deferred, and the person is looking at, not only a permanent conviction and substantial jail time, but also a driver’s license suspension to boot.
Deferred adjudication also doesn’t mean that a person’s record is “clean.”  In the age of the internet and complete criminal background checks, what will often show up after a person has gone on deferred is that he was arrested, did a form of probation, but simply did not have a formal conviction entered against him.  This still counts as a big red flag in the eyes of many potential employers and others.  I recently had a self-employed client, for instance,  who does contract work for school districts and, who has to have a background check run by a district every time the client bids on work.  The client had to turn down deferred adjudication in a drug case because the client couldn’t bid on school district work with a a deferred appearing on record check. Deferred adjudication just doesn’t work for everyone.
Why do you need a lawyer in a drug case? Because you want your attorney to explore other options that may keep your record clean, not just automatically settle for deferred adjudication.  Because you want your attorney to help you lessen the impact of a deferred adjudication on your future if you do wind up having to do deferred.   Because  even misdemeanor drugs cases can be serious, not just five minutes from now but also five years from now when you are trying to get on with your life.

I got a client’s Possession of Marijuana case dismissed at  the jury trial docket in Seguin this week.  The first question the client asked me after the State told us it would dismiss the case was:  “How soon can I get my arrest record expunged?”  This is an important question for him, since he is job-hunting, and even an arrest for Possession of Marijuana might show up on a potential employer’s criminal background check.  The answer I had to give him, unfortunately,  was: “Not as soon as you would like or expect.”

According to the Texas Supreme Court, there is sometimes a waiting period in order to apply for an expunction.  Last summer, the TexSupremes ruled that, even after a case is dismissed,  a person has to wait until the statute of limitations for the State to ever refile the case has passed before he can seek to erase the record of the arrest.  In a misdemeanor case, the statute of limitations is two years after the date of the arrest.  For example, if someone was arrested for Possession of Marijuana (Under 2 ounces) on January 1, 2008, and the case was later dismissed, the person would be eligible for an expunction of the arrest on January 1, 2010.  So I had to tell my Guadalupe County client that he had to wait until two years from the date of his Possession of Marijuana arrest before he was eligible to have the arrest expunged.

The danger that this creates, of course, is that a person gets his case dismissed, gets on with his life, and neglects to apply for an expunction until he realizes, at the last minute, that he needs one for a job interview.  One of the things we try hard  to do in our office  is to remind all of our clients for whom we have earned dismissals exactly when their expunction eligibility dates will fall.  If you have had a case dismissed, be sure you know exactly when you will be eligible to expunge your arrest record.

It’s Memorial Day, which means its time for illegal law enforcement checkpoints on the Guadalupe and Comal Rivers in New Braunfels and Comal County.

Over the past several years, my office has filed several suppression motions in Possession of Marjuana cases dealing with illegal police checkpoints on the Guadalupe and Comal Rivers. A “checkpoint” is a fixed place where law enforcement stops everyone, or people at random, without reasonable suspicion or probable cause to believe the person stopped is committing a crime. The person is then subjected to to a seach, inspection or questioning.

Typically, the river cases go something like this: A person is floating in an inner tube on one of the rivers and has a cooler (or a tube holding a cooler) attached to his tube. A police officer, who may be standing either on the riverbank or in the river itself, informs the person that he has to stop because the cop needs to search the cooler for glass or styrofoam. This is even if the tuber, or the others in his group, have had no glass or styrofoam in their possession. Sometimes, if the cop is smarter than the average bear, instead of telling the person that the cooler will be searched, he asks “May I look in your cooler for glass or styrofoam?” while he motions the tuber over to his location. The cooler gets searched, a baggy of weed gets found, and if none one else pipes up to claim the contraband, the person attached to the cooler is on his way to jail for possession of marijuana.

Law enforcement checkpoints on the Guadalupe or Comal Rivers are illegal. Our Texas Court of Criminal Appeals has held, for over a decade now, that law enforcement checkpoints are illegal unless the Legislature authorizes the police to conduct a specific type of checkpoint. The Texas Parks and Widlife Code, for instance, permits law enforcement to randomly stop and board boats on waterways to inspect for required safety equipment. The Legislature, however, has never passed any statute that allows law enforcement to conduct checkpoints in order to search for glass or styrofoam on a river. Any contraband seized as a result of detaining someone at a river checkpoint without reasonable suspicion or probable cause can be excluded from evidence in a criminal case.

If you are stopped at a river checkpoint and are charged with a crime as a result a stop and search at an illegal checkpoint, you should have your attorney consider filing a motion to suppress any evidence seized. If a cop asks you for consent to search your cooler on the river, you can legally say “no.”

Happy Memorial Day tubers.