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.

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

As most defense attorneys in Texas know, the State’s Online Solicitation of Minor statute, Texas Penal Code Section 33.021, has run into trouble.  The Court of Criminal Appeals ruled part “b” of the statute unconstitutional in 2013 in the unanimous decision styled Ex parte Lo. The Court reasoned that the statute was overbroad and unconstitutionally vague, and that the speech it criminalized included too many types of speech protected the First Amendment of the Constitution.

Attacks of other parts of Section 33.021 have followed, most centering on either the problematic definition of “minor” (according to the statutory definition, a “minor” can be someone who represents themselves as younger than 17, regardless of whether the defendant actually believed this person to be the represented age) and on part d of the statute, which, strangely, prohibits a “fantasy” defense (so that a defendant could engage in sexual exchanges online that the person fully intended as merely age role-play, for example, with another person whom the defendant did not believe to be younger than 17, and still be guilty of a felony).

Continue reading

On February 4, the Ninth Court of Appeals in Texas provided a way for prosecutors to indict synthetic marijuana cases.  In State v. Moseley, the 258th District Court in Polk County granted the Defendant’s motion to quash the indictment. The indictment in question did not identify any of the specific substances listed in Section 481.1031 (that would be “Penalty Group 2A”) of the Texas Health and Safety Code, but just referred generically to “a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids.” At the suppression hearing, the defense successfully argued that this generic reference was insufficient to inform a defendant that he had committed any particular offense.

The cornerstone of the defense’s argument is that Penalty Group 2A provides an exclusive list of prohibited synthetic substances. So if the State indicts a person for possessing a controlled substance under Penalty Group 2A but fails to specify one of the particular substances listed in that group, then the State has effectively failed to allege an actual offense.

In its appeal, the State argued that it did not have to specify a particular substance, but could just rely on the “general requirements” set out in the preamble of Penalty Group 2A.

Continue reading

As the Chris Kyle murder trial continues this week in Stephenville, Texas, it seems appropriate to open this criminal appellate blog with a brief discussion of the Texas affirmative defense of Insanity. The prosecution has already played the videotape judicial confession of Iraqi War vet Eddie Ray Routh, and it is now up to both sides’ medical experts to present evidence as to whether Mr. Routh was insane at the time he shot and killed the famous Navy SEAL Chris Kyle and his friend Chad Littlefield.

In Texas, a criminal defendant may attempt to affirmatively prove that, at the time he committed the charged conduct, he did not know that the conduct was wrong because of a “severe mental disease or defect.” The Texas Legislature has refused to define either of these terms because it’s ultimately a juror’s job, not a doctor’s, to give these terms their “common usage” meaning and to determine if the defendant is legally insane.

Continue reading

Contact Information