After nearly a decade of working as a prosecutor, Corey left the Montgomery County District Attorney’s Office and devoted his career to the practice of criminal defense. He specializes in direct appeals and post conviction matters, but you can find him nearly every day in court fighting for his clients. With this blog he aims to shed light on the often confusing Texas Criminal Justice System.

Most people don’t expect to get arrested. When it happens, a range of emotions can hit you, from anger, to disbelief, to pure panic. But after the initial shock wears off, you’ll start to think about the best way to protect yourself. In trying to figure out how to react to your new reality, you probably won’t be relying on direct experience (unless you’re used to getting arrested all the time!). Instead, you’ll rely on what you consider common knowledge of how the criminal justice system works. But be careful, because many of the “truths” about how the system works are in fact nothing but myths. Here’s five “Criminal Justice Myths” that you should stop believing in:

 1. If the Officer doesn’t read my Miranda Rights, my case will get dismissed.

“Mirands Warnings” are a list of rights that you’ve heard on television a million times: the right to remain silent, the right to talk to an attorney, and the right to know that anything you say can and will be used against you in Court. I’m sure you have a favorite Miranda scene in a Movie. Mine is from the “Dragnet” remake with Tom Hanks and Dan Aykroyd.

Everyone knows the line “you have got the right to remain silent” – its part of the “Miranda Warnings” that officers say to suspects after they’ve been arrested. When an average citizen says that you shouldn’t talk to the police, he’s thinking of that kind of situation — where a guy is handcuffed and leaning against a patrol car with red and blue lights flashing in the background.

It’s easy to keep your mouth shut under those circumstances . . . but that’s normally not when a suspect talks.

Most people accused of crimes, especially serious felonies, aren’t under arrest when they first encounter law enforcement. They will get a phone call from an investigator, or a laid back invitation from an officer trying to “figure out what’s going on” or who “just wants to hear your side of the story.” These law enforcement professionals will sound friendly, relaxed, and helpful. They will assure the suspect that there are no charges pending, that no one’s under arrest, and that all they want to do is talk.

contract-1426885-1280x960
By: Tracy Pullan

Today I am here to dispel some of those myths about the effectiveness of “dropping charges” on an alleged abuser in Montgomery County, Texas. I remember my days as a new prosecutor over 10 years ago. I, and two others, were in charge of all the misdemeanor intake for Montgomery County. That job required countless hours of reading offense reports submitted by police officers followed by either accepting or rejecting charges. It was an excellent way to become familiar with elements of criminal offenses and spotting potential issues within a case. Many times that would entail calling an officer or victim to get some further information prior to accepting charges.

Many times an assault family violence charge would come across my desk where the victim/complainant wanted to drop charges. At the time, I would review the case, look at photos for injuries, talk to the complainant – and 9 times out of 10 – I would honor the request of the complainant and reject the charge. This meant the arrested individual did not have to come to court or hire an attorney to defend his or her interest.

Governor Greg Abbott recently signed a law which make significant changes to the way a grand jury is selected. The old “pick your pal” method of selecting grand jurors is now history, but the new law doesn’t address other problems with the grand jury process.

How the grand jury selection process used to work:

A grand jury is a group of 12 citizens selected in a particular jurisdiction to decide whether a person should be indicted for a felony offense. Unlike the familiar jury in the courtroom (the “petit jury”), which is empaneled to decide whether a person is guilty or innocent of a crime, the grand jury has to answer a “threshold” question — whether there is probable cause to accuse a person of a specific crime or crimes. So the grand jury acts as the justice system’s gatekeeper.

Continue reading

Many potential clients have come to me wanting to “do something” about their conviction or the conviction of a loved one. I’ve found that the post-conviction process can be difficult to understand, so here’s a primer that might help. Let me emphasize that this is just a basic introduction — to find out what you or a family member need to do after an actual conviction you’ll need to seek a consultation with an attorney.

Direct Appeals

  1. Direct appeals are limited to the trial record. That means only words typed by the court reporter or documents filed with the district clerk can be reviewed for potential issues to appeal.
  2. You can only appeal issues that were preserved. So your attorney had to object to something the State did, or file a written motion complaining about an issue. Normally an objection has to be timely — you can’t wait until the next day to complain about an objectionable question asked by the prosecutor. The upshot of “preserving” error is to make the trial court aware of the issue with enough clarity for the Court to make a ruling on it, AND for the Court to then actually make a ruling.
  3. Deadlines are an important part of the direct appeal. A notice of appeal must be filed quickly after the conviction. This secures jurisdiction for the appellate court. Once the appellate court has jurisdiction, it begins issuing deadline orders — first for the clerk’s and reporter’s records, then for briefs. These deadlines usually come in 30-day increments.
  4. After the appellate court receives the briefs from both the Defendant (now the Appellant) and the State, it will pick a submission date to consider the record and arguments.
  5. Oral argument is VERY RARE these days — most cases are decided on the briefs alone.
  6. The entire process takes months, usually between four to six, for a final ruling from the appellate court. The appellate court’s decision can itself be appealed to the Court of Criminal Appeals, but the higher court does not have to grant review of the lower court’s decision.

So, with these basic aspects in mind, it is easy to see that if you have a trial or litigate an issue in front of the court (like a motion to suppress evidence based on an illegal stop), then a direct appeal would make sense. You can appeal something even after pleading guilty, as long as the issue you want to appeal was fully litigated or presented prior to the guilty plea and the trial court certifies your right to appeal (you’ll know this because when filing out your plea paperwork there will be a specific document detailing your right to appeal).

Continue reading

Once upon a time in a not-so-distant past a prosecutor named Ken Anderson decided that he wanted to send a man named Michael Morton to prison for killing his (Mr. Morton’s) wife. The only problem was that Mr. Morton didn’t actually commit the murder.

But Mr. Anderson couldn’t be troubled with such stubborn facts, so he deliberately withheld exculpatory evidence during the trial. Mr. Morton was found guilty and served 25 years in prison. The withheld evidence included a blood-soaked bandana found at the crime scene that belonged to Mark Allan Norwood, the man ultimately convicted of the murder of Mr. Morton’s wife and another woman.

This awful series of events eventually led to the disbarment of Mr. Anderson (who had subsequently been elected to a district court bench), a finding of contempt (with a sentence of just ten days in jail, which seems a bit soft-handed in light of the 25 years served by Mr. Morton), and an agreed audit of every Williamson County case handled by Mr. Anderson (read about that little-know fact here).

Continue reading

image - handcuffsDefendants new to the criminal justice system in Texas often don’t understand the hazards of being on pretrial conditions of bond. People generally think you simply find a bondsman, pay them 10 percent of the bond amount, then do a quick walk through the local county jail and wait for your case to get resolved. Few defendants understand how easy it is for a judge to issue an order of arrest and place them back in jail indefinitely, and few defense attorneys properly explain this process to their clients. If you are out on bond facing criminal charges, here’s a few pointers.

First, expect to log in some serious time while waiting for your case to get resolved. You might be surprised to find out that defendants on conditions of bond have to report to the same system as those who have already been found guilty of a crime — the Adult Probation Department. This means that on a monthly or even weekly  basis you have to drive to a probation office. You also have to submit to drug tests just like you would while on probation. You can get drug tested at court, when you go to meet your probation officer, or you may get a call for a random drug test at any time. And remember, you haven’t been convicted of crime!

Continue reading

A recent NY Times article that made it in into the site’s top ten most-emailed list reported on Zachary Anderson, a 19-year-old from Indiana who used the dating App Hot or Not to hook up with a girl who said she was 17.

Anderson met up with the girl and they had consensual sex. She later confirmed that she had continued to tell Anderson that she was 17. In fact, she was 14, and, after her mother called the police, they initiated an investigation.

Continue reading

In another show of strange bedfellow bipartisanship on criminal justice issues, the Supreme Court issued an opinion last week that protects a defendant’s constitutional rights during traffic stops.

The case, Rodriguez v. United States, concerns a defendant and passenger in Nebraska who were stopped by police after he drove onto the shoulder. Through the course of a few minutes, the officer took documentation from the defendant, went to his patrol car to check for warrants, returned to the defendant’s car, expressed his intention to issue a warning, returned again to the patrol car, called a second officer to the scene, then walked back to the defendant’s vehicle to ask if he could run a drug dog around the vehicle (the officer was in a K-9 unit and had a dog in the patrol car ready to go). When the defendant refused the officer’s request, the officer instructed him and his passenger to exit the vehicle, then walked the dog around the vehicle twice. On the second pass the dog alerted to contraband.

Relying on a line of Eight Circuit cases holding that an officer can “incrementally” increase the length of a traffic stop since the “de minimus” intrusion is outweighed by a legitimate public interest of pursing a separate, unrelated investigation, the magistrate judge denied the defendant’s motion to suppress the results of the drug sniff. Adhering to the same precedent, the district court and appellate courts affirmed.

Continue reading

On March 25, 2015, the Fifth Court of Appeals in Dallas reversed various bribery-related convictions of David Cary. Mr. Cary had been accused of secretly funneling money to attorney Suzanne Wooten, who was running for the 380th District Court bench in Collin County, which is just north of Dallas.

According to the opinion of the Fifth Court of Appeals:

“Boiled down, the State’s theory in this case was that the Carys [referring to David Cary and his wife, Stacy Stine Cary, who was also charged and convicted of bribery] secretly funded Wooten’s campaign for elective office. And the only evidence of a benefit to Wooten in this case was that Stacy Cary gave money to Spencer [the judicial candidate’s campaign manager] and Spencer used it in connection with Wooten’s campaign.”

The evidence showed that Mr. Cary and his wife funneled a lot of money – around $150,000 — to the Wooten campaign by making numerous large payments to the campaign manager, who then used the money to pay for campaign stuff, e.g., signs, a consultant fee, etc.

Continue reading