Over 8 Years of Judicial Experience
Texas A&M Graduate Class of '85
Over 25 Years experience as a practicing attorney

Published on: | By

When a person is accused of a crime, he or she has the constitutional right to confront any witnesses relied upon by the prosecution. If the prosecution is permitted to rely upon testimony from witnesses the defendant has not had a chance to cross-examine, it may constitute a violation of the defendant’s rights and any conviction based on that testimony may be unjust. In a recent case decided by the United States Court of Appeals for the Fifth Circuit, the court ruled that a defendant’s right to confront witnesses was violated by testimony from a police officer regarding information about a drug transaction involving the defendant that was provided by a confidential informant. If you are charged with drug trafficking or any other crime it is critical to retain a seasoned Texas drug crime defense attorney to assist you in presenting a vigilant defense.

Facts of the Case and Procedural Background

Reportedly, the defendant was arrested following an investigation regarding methamphetamine trafficking. Specifically, the police received a confidential tip that a drug transaction was going to take place in a parking lot. A surveillance team monitored the lot and observed the defendant pull up next to another person in a different vehicle, after which the two vehicles drove off together. An officer observed the drivers of the two vehicles meeting briefly, then driving off separately. The police began following the defendant, and after he committed a traffic violation, attempted to stop him.

It is alleged that the defendant sped up and drove away, temporarily evading arrest. The police searched the area and found a gun and a bag of methamphetamines on the side of the road. The defendant was charged with possession of methamphetamines with the intent to distribute. During the trial, the arresting officer testified that he did not actually see a drug deal happen between the defendant and the other driver. The officer then stated, however, that after the alleged drug transaction he called his confidential source, who confirmed that the transaction occurred. The defendant was convicted. He appealed, arguing in part that the officer’s testimony regarding his confidential source violated his rights pursuant to the Confrontation Clause.

Continue reading →

Published on: | By

Sex crimes are often hard to prove, as they largely rely on circumstantial evidence regarding whether the defendant had consent. Many statutes defining sex crimes include lack of consent as an element of the crime the State must prove to obtain a conviction, but do not require the defendant to set forth any proof. Recently, the American Bar Association weighed in on the issue of whether the criminal statutes should be overhauled to impose a burden on the defendant to prove affirmative consent. If you are a resident of Texas charged with a sex crime it is crucial to retain an assertive Texas sex crime defense attorney to help you protect your rights.

The Proposed Resolution

The American Bar Association (ABA), is not a governing body but is a voluntary association that sets academic standards for law schools and adopts policies on legislative issues. Recently, the ABA was presented with a controversial issue via Resolution 114, which originally recommended that criminal codes be modified to include “affirmative consent” as an element of sexual offenses. In other words, the burden of proof would essentially shift from the State, who is required to prove each element of a crime beyond a reasonable doubt, to the defendant, who presently does not have a burden of proof in criminal trials. Requiring proof of affirmative consent means that the defendant must prove that he or she obtained consent from his or her partner before and during any sexual activity. Additionally, any change or advances in the activity may require renewed consent.

Prior to the vote, the language of the resolution was modified in part, to change the word assent, which was deemed unclear, to consent, and to include a phrase indicating that the defendant was still presumed innocent and the burden of proof remained with the State. While the modifications would mirror the consent standard of many colleges the standard would be impossible to meet on a practical level, and would likely lead to increased plea bargains.

Continue reading →

Published on: | By

In many states, a person can face criminal and civil penalties if he or she falsely accuses another person of a crime. One high profile example of the consequences you may face if you are suspected of making false accusations is the recent case involving an actor who alleged he was a victim of a hate crime earlier this year in Chicago. While the actor was cleared of all criminal charges arising out of the incident, he now faces civil liability for the purported costs of investigating the crime. Currently, the actor is attempting to have the civil claims dismissed, arguing that they are unfounded. If you live in Texas and are charged with making a false police report you should consult a knowledgeable Texas criminal defense attorney as soon as possible to discuss your case.

Criminal and Civil Allegations Against The Actor

Reportedly, in January of 2019, the actor reported to Chicago police that he was attacked outside of his apartment by men making racist and homophobic comments. The incident was initially treated as a hate crime, with numerous political and entertainment figures speaking out against the crime. Shortly after the alleged crime was reported, however, the two men who were named as people of interest in the crime by the Chicago police alleged that the actor  hired them to stage the attack.

The police then ceased investigating any crime against the actor to turn the investigation on the actor himself. While it seemed that the actor may be convicted for filing a false police report, the case against him was dropped and the file was sealed. The actor was ordered to pay the City of Chicago for the costs of investigating the crime by April 4th but failed to do so. Subsequently, the City of Chicago filed a civil lawsuit against the actor seeking the costs associated with investigating the attack, as well as penalties for making a false report.

Continue reading →

Published on: | By

It is not uncommon for business owners to ask their employees to enter into non-compete or non-disclosure agreements. If a former employee subsequently starts a competing business in violation of an agreement, the business owner can take legal action against the employee to recover damages. In many cases, however, the employee may be protected from enforcement of the agreement under the Texas Citizen’s Participation Act (TCPA) which is an anti-SLAPP law.

In a recent case in which an automatic stay had been issued pursuant to an interlocutory appeal following a denial of a motion to dismiss pursuant to TCPA, the Supreme Court of Texas ruled that  a trial court lift the automatic stay to conduct proceedings.  If you are a business owner or an employee subject to a non-compete or non-disclosure agreement you should meet with a skilled Texas civil litigation attorney to discuss your options for seeking recourse for any alleged violation of the agreement.

Factual and Procedural Background

It is alleged that the plaintiff, a scrap metal recycling company, filed a lawsuit against defendant, another scrap metal recycling company started by some of plaintiff’s former employees, alleging breach of fiduciary duty, misappropriation of trade secrets, and other related claims. The defendants filed a motion to dismiss under the TCPA. The trial court denied the defendant’s motion, after which the defendant filed an interlocutory appeal. Pursuant to Texas statutory law, the appeal triggered a stay of all proceedings in the case.

Continue reading →

Published on: | By

If you are involved in an accident while you are intoxicated, it can result in serious charges with significant penalties. This was demonstrated by the recent arrest of a UFC fighter who was charged with 20 crimes following a DUI related accident in which two people lost their lives. If you are charged with multiple DUI crimes following an accident you should speak with an experienced Texas DUI defense attorney regarding your available defenses.

Facts Regarding the Alleged Incident

Allegedly, the fighter was involved in a car accident in August of 2018 that caused the death of two women. The accident occurred in the early morning of August 18, 2018, on a freeway in Florida. It is alleged that the fighter veered his SUV into the path of a tractor trailer, hitting the tire of the tractor trailer and setting off a chain reaction that lead to an accident involving three other cars. The fighter then struck a guard rail which caused his SUV to propel into the path of a car, causing the car to hit the guard rail and flip over. Two of the passengers in the car were killed and the driver sustained serious injuries. The fighter and another driver were treating for injuries as well.

It is reported that immediately after the accident, a witness observed the driver throwing an object over a concrete barrier. When the police investigated the accident, they collected the object, which was a tool used to grind marijuana. The police also spoke to the fighter, who appeared to be intoxicated. Specifically, his speech was slurred, and he had an odor of alcohol. The police also noted a bag of white powder on the passenger seat of the fighter’s SUV, which was later determined to be cocaine. The police reportedly obtained samples of the fighter’s blood from the airbag and interior of his car.

Continue reading →

Published on: | By

Most people are familiar with the phrase “double jeopardy” and generally understand it to mean that you cannot be convicted twice for the same criminal offense. While many people understand the basic concept of double jeopardy, the precise protections the Double Jeopardy Clause of the United States Constitution provides is not always entirely clear. Recently, the United States Supreme Court made great strides towards narrowing and defining the Double Jeopardy Clause, in a case in which the Court analyzed whether similar crimes charged by the state and federal government constitute the “same offense.” If you are charged with one or more crimes, you should speak with a skilled Texas criminal defense attorney to discuss whether you may be afforded protection from multiple convictions under the Double Jeopardy Clause.

Factual Background of the Subject Case

Reportedly, the defendant was driving his car in Mobile, Alabama when he was stopped by a police officer due to a damaged headlight. The police officer searched the defendant’s car and found a loaded gun. The defendant was previously convicted of second-degree robbery, a violent felony, and therefore was prohibited from owning a firearm under Alabama law. He was subsequently charged with violating the state law barring him from possessing a gun and pleaded guilty. The defendant was then indicted for the same crime under federal law. He filed a motion to dismiss, arguing that the federal charge was the same as the state offense and therefore, exposed him to double jeopardy. The district court denied his motion and the issue was ultimately appealed to the United States Supreme Court.

What Constitutes the Same Offense?

The Court affirmed the district court ruling, upholding the separate sovereigns doctrine. Under this doctrine, the state and federal government are considered separate sovereigns, and therefore, a state criminal charge and a federal criminal charge do not constitute the same offense. The Court noted that while the separate sovereignty doctrine is often referred to as an exception to the Double Jeopardy Clause of the Fifth Amendment, it is not an exception but is explicitly provided for in the text. Specifically, the Court noted that the Double Jeopardy Clause prohibits more than one prosecution for the “same offense”, not for the same actions or conduct. The court explained that “offense” is the term used to refer to a violation of a law, and sovereigns draft laws. Therefore, if the same conduct constitutes a violation of distinct laws from separate sovereigns, it is not the same offense.

Continue reading →

Published on: | By

It is common knowledge that when a person causes harm, he or she may be held liable for any damages sustained by the injured party. There are certain exceptions to this rule, however, such as when the person that causes the harm is employed by the government. In such cases, the Tort Claims Act may preclude liability against the person as an individual. The implications of the Tort Claims Act was recently analyzed by the Supreme Court of Texas, in a case in which an individual was killed by an off duty police officer. If you suffered harm due to the negligent acts of a government employee, you should consult a knowledgeable Texas personal injury attorney to discuss your options for seeking damages.

Facts of the Case

It is reported that the defendant, who was employed as an officer with a Texas police department, worked as a courtesy patrol officer at an apartment complex. Upon arrival at the apartment complex one evening, he noticed an individual in a car allegedly engaged in a crime. The defendant approached the car and identified himself as a police officer and asked the individual to step out of the car. The individual ignored the defendant and started to drive away. The defendant drew his weapon and fired shots at the vehicle. One of the shots hit the individual, who ultimately died from his injuries.

It is alleged that the individual’s estate sued the defendant in state court, alleging he was an employee of the apartment complex, and in federal court, alleging he was acting under color of state law and accordance with his police training. Following discovery in the state case, the defendant filed a motion to dismiss based on the election of remedies provision of the Tort Claims Act. The trial court denied the motion and the defendant appealed.
Continue reading →

Published on: | By

An arrest record can follow a person for years and may cost him or her employment opportunities and financial hardship, even if the person was not convicted or was ultimately pardoned. In certain cases, however, a person can seek an expunction and have all records and files relating to the arrest removed.  Expunction is not available in all cases, however, as illustrated in a recent Texas appellate court case, where the court reversed a prior order granting an expunction, on the basis it was improperly granted. If you were previously arrested and would like to seek an expunction you should consult a skilled Texas criminal defense attorney to discuss whether you may be able to request the removal of any records relating to your arrest.

Facts Regarding the Defendant’s Arrest

Reportedly, the defendant was arrested for, and charged with, larceny and theft by check. She pleaded guilty to a reduced charge of issuance of bad checks. She was subsequently convicted and fined and ordered to pay court costs. Almost thirty years later, she filed a petition to expunge her arrest records, stating she was not convicted of an offense relating to her arrest. The Texas Department of Public Safety filed a response stating that the arrest resulted in a final conviction. Following a hearing, the court issued an order granting expunction. The Department of Public Safety appealed.

Grounds for Expunction

Expunction is a right provided for under the Texas Criminal Procedure Code. Under the applicable statute, a person who was arrested for a felony or a misdemeanor is entitled to have the records and files relating to his or her arrest expunged if he or she was tried for the offense for which he or she was arrested and was subsequently acquitted. A person is also entitled to an expunction if he or she was convicted of the offense for which he or she was arrested but was then pardoned. Lastly, a person may seek an expunction if he or she has been released and the charge did not result in a final conviction and is no longer pending.
Continue reading →

Published on: | By

In the legal realm, “negligence” typically refers to a civil claim in which an injured party alleges that another person breached a duty of care owed to the injured party and thereby caused the injured party harm. In Texas, however, there are certain instances in which a person can face criminal charges due to negligence. For example, a Texas bartender is currently facing criminal negligence charges for allegedly serving an intoxicated patron.  If you are charged with criminal negligence or another crime it is critical to engage a skillful Texas criminal defense attorney to assist you in formulating a strong defense.

Facts Regarding the Alleged Criminal Negligence

Reportedly, the bartender was working at a bar in Plano in 2017, when she served alcoholic beverages to a 32-year-old man, despite evidence that he was already intoxicated. Text messages obtained from the bartender’s phone indicate that the man had a knife in the bar and stated he was going to “go do some dirty work.” The bartender also texted a friend about the man’s excessive drinking. The bartender, who socialized with the man outside of the bar, called the police after the man left the bar to report his behavior.

It is alleged that after the man left the bar, he went to the home of his estranged wife where a party was being held. He then fatally shot his wife and seven other individuals. The man was killed by police who responded to the shooting. Following his death, it was determined that his blood alcohol level was over four times the legal limit for driving in Texas.
Continue reading →

Published on: | By

During criminal trials in Texas, it is not uncommon for either party to use demonstrative evidence such as video or audio recordings, or charts or drawings, to make issues clearer for the jury and to help the jury understand the evidence. The jury is still required to determine whether a defendant is guilty based on the factual evidence presented, however. Thus, if the State presents demonstrative evidence that induces the jury to come to a decision based on matters not in evidence, it can result in an unfair verdict. A Texas appellate court recently analyzed when demonstrative evidence goes too far, in a case in which the State showed a video of a lion at the zoo trying to eat a baby during a robbery trial. If you are currently charged with robbery or any other crime it is essential to retain a knowledgeable Texas criminal defense attorney to defend you against the charges you face in hopes of allowing you to retain your rights.

The Alleged Robbery and Subsequent Trial

Allegedly, in 2015, the defendant entered a convenience store and when no one else was around went up to the cashier and stated it was a “stick up” and that he had a weapon. He never showed the cashier a weapon, however. He then demanded money from the cashier and took food and beverages as well before walking out. He was apprehended a short time later with the items and money he stole in a backpack. He did not have any weapons when he was stopped. He was subsequently charged with robbery.

It is reported that during the punishment phase at trial, the State showed a video of a lion behind glass at the zoo appearing to attempt to eat a baby. Defense counsel objected to the use of the video, but the objection was overruled. The State then likened the defendant to the lion, suggesting he posed a threat outside of jail and should receive an enhanced sentence. The defendant was subsequently sentenced to 50 years in prison, after which he appealed.
Continue reading →

Contact Information
504 E 27th St
Bryan, TX 77803
Phone: 979-779-4357Toll Free: 800-499-1749Fax: 888-435-4080
We serve clients throughout Texas and the Brazos Valley including, but not limited to, those in the following locations: Brazos County including Bryan and College Station; Austin County including Bellville; Burleson County including Caldwell; Falls County including Marlin; Grimes County including Anderson and Navasota; Leon County including Centerville; Madison County including Madisonville; Milam County including Cameron and Rockdale; Montgomery County including Conroe, Montgomery, and The Woodlands; Robertson County including Franklin and Hearne; Walker County including Huntsville; and Washington County including Brenham. View More
Copyright © 2019, Rick Davis & Associates
JUSTIA Law Firm Blog Design