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In Texas, prosecutorial misconduct is usually framed as either a “Brady” violation or “false evidence” claim.

Either one of these types of claims can theoretically be raised on direct appeal, but in order for the merits of the claims to be considered by the appellate court the trial attorney would have to (1) learn of the misconduct, (2) object to it, and (3) make a record of it by means of a bill of exception or witness voir dire.

As a practical matter, if the record is not made of the alleged misconduct, you can’t raise it on direct appeal, even if you learn of the misconduct immediately after the time to file a motion for new trial expires. This is why defendants raise prosecutorial misconduct more often through an 11.07 writ of habeas corpus.

At this point everyone knows that TDCJ has cancelled all visitations, including attorney visits. On the plus side, attorney phone calls are easier to schedule. Although technically lawyers still need to provide on their I-62 request forms a legal basis for their phone call and specify a court proceeding or deadline that will occur within 30 days of the call, TDCJ appears willing to approve calls generally in lieu of a physical visit, even if no deadline is approaching.

I’ve been able to schedule multiple client calls with “In lieu of client visit” as the legal basis for the call.

ANECDOTAL UPDATES FROM CLIENTS AND THEIR FAMILIES:

One of the most common grounds raised in Texas 11.07 writ of habeas corpus applications is the involuntary plea. Here’s the basics of how such grounds work and what you or your loved one will have to prove.

First, you must overcome the presumption that the plea was voluntary.

In my prior post I walked through the formalities of the plea process. These formalities include your written and oral statement (if the plea was recorded) that you understand the charges, that you’ve been fully and adequately advised by your attorney, and that your plea is knowing and voluntary. This paperwork creates a presumption of voluntariness that you must overcome in your writ application with affirmative evidence. A sworn statement by the applicant that his attorney misled him or misadvised him will never be enough evidence to overturn a guilty plea.

Most criminal defense attorneys operate a private practice that relies on government money to stay afloat. And that may lead to compromised representation.

So what exactly am I talking about? Let me explain.

Most of you looking for a lawyer for a criminal case think there are two kinds of defense attorneys: “appointed” attorneys that the government assigns to poor people that can’t afford a lawyer, and private attorneys who run a business representing criminal defendants. If you’re paying good money for an attorney, you’d just assume that your lawyer is a competent business person who will put real time into your case and limit the number of clients — a classic quality over quantity practice. But if you catch a case in many parts of Texas, including big suburban counties like Montgomery, your assumptions would be wrong.

This post is the first entry in our “Know Your Legal Rights” series of blog posts related to police vehicle stops, detentions, and arrests. These posts are case studies based on real-life situations faced by defendants in the State of Texas, and are provided as general-interest information.They are not intended to be, and are not, legal advice. Every case is unique. So if you get pulled over and arrested, please seek the advice of legal counsel.

Today’s Question: Can a driver consent to a police search of a passenger’s purse?

Imagine you catch a ride with a friend. A few miles into the drive, you see flashing red and blue lights in the rear view mirror. Moments later you are parked on the side of the road having a conversation with a police officer.

The Texas legislature has given judges and juries broad discretion in assessing punishment, especially for 1st Degree felonies. If you’re convicted of a 1st-degree crime and have no criminal history or enhanceable aspects to the offense, you face anywhere from 5 to 99 years in prison.

This can lead to unfair discrepancies in sentencing for defendants that commit the same kinds of crimes. Sometimes the personality and history of the person on the bench ends up being more important than the facts of the case (e.g. is the judge a “hard nosed” ex-prosecutor, a former civil attorney with sympathies for those with substance abuse problems, or a women’s advocate who absolutely hates family violence cases). And, if you’re going to the jury for punishment, it’s basically a complete wildcard.

Texas repeat offender statutes complicate matters. If you’ve been consecutively convicted of two prior felonies, the prosecutor can indict you as a habitual offender. Upon conviction, your minimum prison sentence is 25 years.

As marijuana becomes legal in more States, the States where is it still illegal (Texas) are happily continuing to arrest and prosecute those that possess it. As you come back from Colorado with your legally purchased marijuana, you should know that not all marijuana is treated the same in Texas.

Possession of marijuana in its plant form will most likely be a misdemeanor – you have to work to get to a felony – we are talking over 4oz.  If you are interested you can look at the statute here: Health and Safety Code section 481.121. This visual guide found on Leafly.com gives you an idea of how much marijuana you can carry and still be in the misdemeanor range.

<—That is one ounce.  You can have 4x that and still be in the misdemeanor range