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Grant M. Scheiner - Houston Criminal Defense Lawyer

Federal Judge Sentenced to Prison

In Houston, a Federal Judge was sentenced to 33 months in prison, followed by 3 years of supervised release.  The Houston Chronicle reports that former Judge Samuel Kent will report to the Federal Bureau of Prisons next month.  Kent lied to a judicial committee who was investigating an alleged sexual misconduct allegation against Kent.

Judge Kent’s reputation was well known in the Houston criminal defense community and in the Southern District of Texas. At least in terms of his temperament, Judge Kent’s reputation was not a good one.  Federal criminal defense in Houston takes a an experienced lawyer and a tremendous amount of effort.  It is complicated as it is, without having to be more difficult.  Judge Kent’s demeanor and courtroom antics were the exception and not the rule.  I have found that Houston criminal defense work is typically much more civilized than state criminal work.

This incident should be a reminder to all of us, be it Houston criminal defense attorneys, prosecutors and judges.  We are all human and we all make mistakes.  It is amazing the “holier than thou attitudes” I see every day at the Houston courts.  I have seen judges, prosecutors, probation officers, and criminal defense lawyers in Houston, all be on the wrong side of the Bar.  Yet, it never seems to change the way we see the citizen accused or even worse, the guilty.

The Chronicle goes on to discuss whether Judge Kent will receive his $174,000 salary.  Unless he is impeached, then he is entitled to keep it.  You better believe the members of Congress will be salivating to impeach the Judge for nothing more than to get their names in the paper.  I am not saying that I think he should receive his retirement, seeing as how he abused his position in more ways than one.  Yet, it is just another example of the people judging another without taking into account of their own humanness.

Petitions for Non-Disclosure and Expunctions

You or someone you know may be in this situation:

  • You have had a case in the Harris County Criminal Courthouse, or any other Texas court for that matter;
  • The judge has granted deferred adjudication; and
  • You have successfully completed deferred adjudication.

What now?  Many assume that once deferred adjudication is completed,  the existence of that charge is automatically erased.  They assume that their record is now clean.  Unfortunately, that is not the case.

Even if you have completed deferred adjudication, the charge will still remain on your record, unless the Criminal Court grants a Petition for Non-Disclosure or an Expunction.

If a judge grants a Petition for Non-Disclosure, then the records relating to that particular charge will be sealed, but not completely destroyed.  Although law enforcement and certain governmental and licensing agencies may be able to access your record, private employers or the public will not be able to. 

If the deferred adjudication has been completed on a Class C misdemeanor, then you may be eligible to have your record expunged.  If the court grants an Exp-unction then any and all information relating to that particular charge will be completely destroyed and no one, not even law enforcement or the government, will have access to that information.

Houston Police Getting Massages Instead of Responding to Burglary Calls

ABC 13 news reports that a 70 year old woman waited 7 hours for police to respond to her 911 call when her house was burglarized.  Mayor White states  that “we ought to be vigilant in trying to do better.”  The problem is not effort.  The problem is the misguided effort.  We all know that if you have a car accident it will be a good hour before anyone officer shows up.  If only, the police were as fast as tow truck drivers.  Back to the burglary,  Quoting ABC 13,

“I don’t want to say who dropped the ball. I will just say there are some items or processes identified in the dispatch function that we are working jointly with HPD on to improve,” said David Cutler of the HEC Center.

Why not David Cutler.  Why don’t you want to say who dropped the ball?

Every local police agency is wasting a huge amount of resources on prostitution cases.  Police officers play on the internet, call up women who advertise massages and schedule appointments.  The officers go to a location to meet a woman. The officer takes off his clothes and gets a massage.  At some point the officer starts requesting sexual acts for money.  If the woman says no, the officer fires off another request.  If the woman says yes, then she gets arrested.  By some accounts, it takes 4 or 5 officer to do one of these stings.  Furthermore, these cases are clogging up the courts because the officers do nothing to record the conversations or gather evidence.  The cases generally are based solely on the officer’s word.  That is a scary thought.

As a citizen, it is frustrating that my tax dollars are going to guys making a good living by getting massages and doing lack luster police work.  I am all for cleaning up all of the social ills of  happy endings.  We all know how teens are dropping out of school because they are strung out on happy endings and people are burglarizing houses so they can get their next happy ending fix.  Give me a break.

As a Houston criminal defense attorney, this type of practice scares me.  Charging someone of a crime solely based on the recently rubbed-down officers word is a scary proposition.  It resembles the old KGB of the Soviet Union or other less than free places.

Bellaire Police Officer Jeffrey Cotton Charged

The New York Times reports that local police officer Jeffrey Cotton has been charged in the shooting of Robert Tolan.  This story has made nationwide news and has even been the subject of an episode of Real Sports by Bryant Gumbel.

Jeffrey Cotton has an arraignment setting in the 232nd District Court of Harris County, Texas.  Cotton was indicted on April 6, 2008 for Aggravated Assault by a Public Servant.   This charge is a First Degree Felony and Mr. Cotton faces 5 years to 99 years and/or up to a $10,000 fine.

Most people know the story.  Robert Tolan, 23 year old black male was driving his own car to his parents home in an affluent, predominately white neighborhood.  For whatever reason Bellaire Police began to follow him and ran his license.  The officers misread the license plate by one digit and the car came up as stolen.  When Tolan pulled into his driveway, police approached him with guns drawn.  Hearing the commotion, his parents came outside in their pajamas.  Robert father, Bobby Tolan, a former major league baseball player, tried to explain to the officers that Robert was his son and this was his residence.  Furthermore, Bobby explained that it was his car his son was driving.  Bobby is forced against his vehicle.  Meanwhile, Robert and his cousin are on the ground as ordered by the police.  At some point, the officer grabs Mrs. Tolan and pushes her against the garage.  Robert Tolan stands up and says, “get your fucking hands off my mom.”

This is when the shot rings out.  Robert Tolan received a single gun shot wound to his stomach.  Disgustingly, the officer put Tolan’s parents in the back of separate police vehicles while EMS attended to Tolan.

So here we are.  I think the Bellaire Officer is going to have a tough time justifying his actions.  There is no excuse for shooting a man in his own front yard in front of his family, absent a threat of deadly force.

This whole story stinks.  The police had no reason to run the license plate in the first place absent a traffic infraction or some suspicious reason, other than the color of the occupant’s skin, that drew the officer’s attention.  Furthermore, when the owner of the residence tells you its his son and the family’s car, the guns should go back into the holsters.  That would have been a good time to apologize to the Tolan family, not shoot their son.

Harris County Criminal Justice System

Anyone charged with a criminal offense in Harris County, Texas is likely to be overwhelmed with the number of courts in the Harris County Criminal Justice Center.

The Harris County Criminal Justice Center is located at 1201 Franklin Street in downtown Houston.

There are fifteen county criminal courts at law. The courts are found on floors 8, 9, 10, and 11. The county criminal courts hear all class B misdemeanors and class A misdemeanors. Class B misdemeanors are offenses that are punishable by up to 180 days in jail and/or a fine not to exceed $2,000. The range of punishment for a Class A misdemeanor is up to 1 year in the Harris County Jail.

The District Courts are located on floors 14, 15, 16, 17, 18, and 19. The District Courts hear all felony cases from first degree murder down to state jail felony drug cases.

NFL Star Charged With Intoxication Manslaughter

The Los Angeles Times reports that NFL Star, Dante Stallworth, has been charged with a Manslaughter charge stemming from a March 14th accident that killed 59 year old Mario Reyes.   This is the prototypical case that has formed organizations such as M.A.D.D. and caused anti-drunk driving bill boards to be put along side our roadways.  This incident occurred in Florida, and if Stallworth is convicted he faces up to fifteen years in prison.   The L.A. Times reports that Stallworth’s blood-alcohol level was a .126, which was obtained by a blood test.

These cases have a lot of issues.  The fact that a person died immediately invokes sadness and anger.  Yet, these cases are much more complicated than they appear at first glance.

The prosecutors must prove two complicated issues.  First, the prosecutors must prove Dante Stallworth was Driving While Intoxicated.  One may think this is a no-brainer because of the blood test.  Skilled attorneys have successfully challenged blood test results on many different fronts.  There are too many issues regarding a blood test to discuss in this blog, but I will say the results are not as hard of a fact as one may think.  It is similar to taking a person’s temperature.  I can think of three different methods to take a person’s temperature.  If you did all three methods at once, you would likely get three different results.

The second issue is causation of the accident.  Civil lawyers have been arguing since the invention of the automobile, “who entered the intersection first?”  Just because Stallworth may have been intoxicated does not mean the accident was caused by him or the intoxication.  The classic example is suppose a Drunk Driver is sitting is stopped at a red light.  Then, another driver falls asleep and crashes into the Drunk Driver and the Sleepy driver dies.  Drunk Driver may get a DWI, but he would not be guilty of Intoxication Manslaughter.  Now that is an over-exaggerated example.  Typically, the cause or fault of the accident may be impossible to determine because one party is deceased and the other party is not talking.

There is no question that all drivers get into accident without alcohol being an issue.   The question for Mr. Stallworth will be “was his alleged intoxication the cause of this accident?”  Meaning if he had not been over the legal limit, “would the accident not have occurred.”

We will wait and see!

The Science Behind Shaken Baby Syndrome

The Houston Chronicle reported that a Harris County man was arrested and charged with capital murder in the death of his son. From what I gathered from the article, the autopsy revealed no external injuries and the cause of death was severe trauma to the brain which the Detectives believe is consistent with Shaken Baby Syndrome.

As a Harris County criminal defense lawyer, I do not feel it is appropriate to discuss this case given the early stages of the case, the seriousness of the charge, and the small amount of information contained in the Houston Chronicle article. The man is presumed innocent and we will leave it at that for now. Yet, I am curious to know what the general public thinks about Shaken Baby Syndrome.

Do people believe this phenomenon exists? Does our medical community and modern science know enough about the brain to make such a determination?

The National Center on Shaken Baby Syndrome is the first place I looked. The site at http://don’tshake.com/ is the first web site I viewed. This is a very well-intended site meant to prevent child abuse. It is clear the organization is well organized and active. Similar to Mothers Against Drunk Driving, one cannot be at odds with the purpose and reason for existence of the organization. The National Center on Shaken Baby Syndrome’s mission is to protect babies from abuse.

Yet, I found it unsettling that the site has a page titled “The Legal System’s Role in Facilitating Irresponsible Expert Testimony.” The purpose of this page was to accuse criminal lawyers of paying an expert to say the syndrome does not exist. Outright, out in the open propaganda.

I have used experts in many cases. You pay for the expert’s time and the expert gives you the opinion. You do not pay for the “opinion.”

So does anyone think Shaken Baby Syndrome does not exist? In a very interesting article, Shaken Baby Syndrome was put to the test. Michael Prange, Ph.D., Brittany Coats, B.S., Ann-Christine Duhaime M.D. and Susan Margulies, Ph.D., medical researchers at the Children’s Hospital of Philadelphia, tested the shaken baby hypothesis. They published their results last year in the Journal of Neurosurgery.

Models were used to simulate forces thought to cause shaken baby syndrome. The research showed that a grown man is not strong enough to shake a baby hard enough to tear brain tissue and cause bleeding. Wonder what inmates convicted of this charge think about that research?

Typically, shaken baby syndrome excludes injuries to the neck. The experiment showed that shaking the model baby would definitely cause injuries to the neck.

So I believe that is a major issue in a Shaken Baby Case. Was the baby’s neck injured? Medical research and common sense should require some injury to the baby’s neck to be consistent with violent shaking of a baby.

A shaken baby case is a hard case to prosecute because there is credible medical research that disputes the existence of such a phenomenon. On the other hand, these cases are even harder to defend because there is a deceased infant and loved ones and police want to hold someone responsible. Too many times there is a perfect scapegoat such as the babysitter or ill-tempered boyfriend.

Curious to know people’s thoughts…

Should I take a Breath Test?

As a Houston criminal defense lawyer, I frequently get the question, “If I am stopped for DUI, should I take a breath test.” Nobody has ever been surprised by my answer. Yet, the reasons, and there are many, not to take a breath test are far more complex than simply not incriminating oneself. People ask, “what if I only had one drink, then should I take the breath test?” I am not in the business of telling people what to do, but my answer is still no. Deetrice Wallace is another reason why.

Deetrice Wallace was a contract employee for the Texas Department of Public Safety. Her day job was a Houston ISD school teacher. From the looks of it, Ms. Wallace was a fine teacher and she was recognized as the 2007 Harris County Teacher of the year.

Ms. Wallace’s contract position with DPS was that of a Breath Test Technical Supervisor. This position is responsible for maintaining and calibrating the “infallible” intoxilyzer 5000. Apparently Ms. Wallace was too busy teaching because the Texas Rangers (guns and badges not baseballs and gloves) investigated Ms. Wallace for falsifying breath test maintenance records. The Harris County District Attorney’s office announced in a press release that Ms. Wallace has been charged with a state jail felony Tampering with a Governmental Record.

I have two DWI clients that I have found so far that have directly been affected by Ms. Wallace’s conduct. I do not think Ms. Wallace was some nut on an anti-dwi crusade. If I had to guess, I would just assume apathy and laziness caused this problem. That is truly sad considering people’s freedom, reputation, and employment abilities are drastically affected by a DWI conviction. DPS has invalidated 2600 breath tests.

So here is the question: What policy is DPS, the State of Texas, and our local prosecutors who are legally bound to “seek justice” going to change. Are we just going to keep letting DPS employees tell us if DPS machines are working. I wonder how long a DPS chemist or DPS breath test supervisor would last if one was honest about how unreliable and unscientific the intoxilyzer 5000 really is.

In every Breath Test Refusal case, prosecutors always say, “the defendant did not take the breath test because he/she knew it would show he/she was over a .08.” Actually, citizens should not take the breath test because NOBODY knows what it will show.

Harris County Judicial Elections

November 4, 2008 was not only a big night for the national stage, but locally as well.

Nine felony district courts were up for election. Democratic challengers won 8 out of the 9 criminal judicial races.

The results are as follows:

174th District Court was vacant because Judge George Godwin is set to retire. The Judge-Elect is Ruben Guerrero.

176th District Court- Judge Elect Shawna L. Reagin

177th District Court – Judge Elect Kevin Fine

178th District Court- Judge Elect David Mendoza

179th District Court- Judge Elect Randy Roll

337th District Court- Judge Elect Herb Ritchie

338th District Court- Judge Elect Hazel Jones

339th District Court- Judge Elect Maria Jackson

35st District Court- Judge Mark Kent Ellis

Judge Ellis of the 351st District Court was the only Republican incumbent to hold onto his bench. Several of the newly elected candidates are fixtures down at the criminal courthouse and others are fresh faces.

It goes without saying that Harris County voted out top-notch, qualified judges like Judge Roger Bridgewater and Judge Caprice Cosper. On the other hand, I think it is fair to say that other courts were due for a change. At this point, we can only hope our new judges are ready to maintain in some courts and create in others, a forum where a citizen can receive a fair trial.

We’ll see what happens.