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Nuclear-300x173So, in year 20, I will continue to do what I have always done and do my best to represent people accused of crimes in Grayson, Fannin and sometimes Cooke County.   I had the opportunity to run for district attorney in one of our counties but could not bring myself to do so. I love helping people accused or investigated for crimes get to the best result possible, especially when that result is a changed life.  Due to my family dynamics and education, I have more insight than most in my opinion to mental health and substance abuse issues, which is an overwhelming need in the criminal justice system.  Even in a wrongful arrest case, I tell people to let the situation be a reason they change their life for the better.  God never puts us through anything that isn’t designed to improve us instead of break us.

So, I will continue to stay here at 711 N. Travis in Sherman, Texas, where my friend Jack McGowen always officed and taught me so much.  Joey Fritts, my friend and companion in criminal defense for many years, is no long with us along with others that I have learned a lot from along the way.  Don Bailey is still in the barn down the street on Willow where I learned so much federal law, and John Hunter Smith is in the Castle on Washington Street where he taught me a ton, along with at the courthouse, and where I used to go see Christmas lights as a young kid.  Sherman is home and will always be home for my practice.

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SubAbuseAd-300x300I eventually got really tired of the relapse levels of some of my clients and the reality of  substance abuse and mental health populations in general, and starting using licensed chemical dependency counselors about seven years ago to help lower the recidivism rate and get people into treatment up front for better results and a changed life.  I have always told clients to do what is in their long-term best interest, not just their short-term best interest.  It is our job to do the math for them both short term and long term, and when a client is addicted to hard drugs such as methamphetamine, opiates or alcohol it can be a tough habit to break.  We have really good treatment programs in Abilene at Concho Valley and the Bowie Women’s program, and some midlevel like SAFP that can make a big difference if a person self-invests.   As the majority of substance abuse clients are self-medicating for undiagnosed or untreated mental illness, or some trauma, it’s very important to get the right counselor in there to help them understand not only their addiction but their triggers.  I find it very rewarding when we can help people turn their lives around and see them at the grocery store or somewhere else in public a few years later a changed person.  Addictions can be overcome, whether its substance abuse or other behaviors, but the work has to be put in.

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drunk-300x288I joined Texas Criminal Defense Lawyers association and attended every seminar I could, driving to Tyler, Corpus Christi, Huntsville for Criminal Trial College and even Laredo for a seminar. I eagerly wanted to learn how to protect my clients and learned the tools of the trade as fast as I could.  This also helped me become board certified in the shortest time possible in 2010, with five years experience.  I did a lot of administrative license review hearings for DWIs and it was easier to win them back then.  There was a form on which I just had to request the arresting officer and breath tech supervisor, the latter who virtually never showed up for hearings because there is only one or two in the region and they handle the trials as well.  I was proud to save a lot of drivers licenses.  Texas eventually changed the law and we now have to subpoena the arresting officer and have to meet a virtually insurmountable burden to force the breath tech supervisor to appear beyond an affidavit.  But, we have been winning close to half of the cases lately.

I tried a lot of driving while intoxicated cases early on, winning some and losing some but always learning and improving.  I attended the seminar to be both a field sobriety test practitioner, like the officers do at roadside, and also several deep dives in the Intoxylizer 5000 machine that was outdated.

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arrest-300x200On November 5, 2025, I will have practiced law for twenty years.  I started out in 2005 with a desk, phone and covering the hearings for a personal injury attorney in 2005 in Sherman, TX.  The local judges had known me from interning for Sheriff Keith Gary, Judge Paul Brown, and District Attorney Joe Brown, so let me start with state jail felonies and third degree felony appointments rather than just misdemeanors.  I mainly covered criminal and family law hearings for him while I built up my own practice through court appointments, referrals and advertising on the internet and otherwise.  I even bought matches and coasters with my information and placed them at the local bars and bar/restaurant scene in Grayson and Cooke county.  I sent direct mails to DWI arrests in Grayson and Fannin county, encouraging them to come in before their drivers license was automatically suspended if they didn’t request the ALR hearing within 15 days.   The only case I know for sure to have come from one of the matchbooks was an important felony aggravated assault case in Cooke County that ended up being my first jury trial win in 2006. My client had chased his ex up and down highway 82 in Gainesville to retrieve his daughter from her vehicle, as it was his day for custody and she was playing games.  She happened to be friends with the police officers, who arrested him for aggravated assault when he backed his car into hers in the median.  We got a misdemeanor fine only and no jail time from a very fair jury.

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TrialA Defendant formally accused of violating probation also has the right to a speedy revocation hearing. In addition to statutory provisions addressing timeliness in motions to revoke, the Court of Criminal Appeals has historically recognized two sources of law which provide for the right to a speedy revocation hearing: (1) the statutory and former common law doctrine of due diligence, and (2) Constitutional speedy hearing rights under Barker v. Wingo. 407 U.S. 514 (1971).  of due diligence has been superseded by statute in Article 42A.751(d).

In 2015, the Texas Legislature added the statutory due diligence defense to the Code of Criminal Procedure, which overrode the common law defense.  It states:  For the purposes of a hearing under Article 42A.751(d), it is an affirmative defense to revocation for an alleged violation based on a failure to report to a supervision officer as directed or to remain within a specified place that no supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation contacted or attempted to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.

When a motion to revoke is filed, the judge normally issues a warrant for the probationer’s arrest, though they may issue a summons.  After fifty years of recognition by the Court of Criminal Appeals, the common law doctrine of due diligence in executing a warrant in motions to revoke has been eliminated. Compare Peacock v. State, 77 S.W.3d 285, 288-89 (Tex. Crim. App. 2002) (finding it imprudent to overturn 40 years of precedent requiring due diligence by State in executing motion to revoke capias) with Garcia v. State, 387 S.W.3d 20, 22 (Tex. Crim. App. 2012) (“we conclude that the 2003 statutory amendments to the Texas Code of Criminal Procedure Article 42.12 replaced the common-law due-diligence scheme).

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TrialBlocksThe reasons for the delay of a trial are important under the second prong, and the State will be required to put forward their reasons at a dismissal hearing.  Right now, blood and drug results from the State laboratory are taking six months or so to process.   A person sitting in jail on a misdemeanor is heavily prejudiced by waiting that long on a chemical result.   A person awaiting felony trial is not as prejudiced per the caselaw, but after nine months or so prejudice can sometimes be shown.   A lawyer should consider filing a speedy trial motion in any trial that will be lengthily delayed by chemical testing, DNA testing or other factors under the State’s control.

Timely assertion of the right is important as the third factor of the Barker analysis. The Court of Criminal Appeals recognized this in Zamorano when the Court categorized the Defendant’s request for speedy trial as “tardy” but found that the “defendant’s assertion of the right” prong should not weigh against the defendant because it was not a case where the Defendant never asked for a hearing and noted “nothing indicated an affirmative desire for delay” on the part of the defendant. Zamorano, 84 S.W.3d at 652.   There are often reasons that a defendant would want a delay in trial proceedings, especially in the case of a potentially large sentence.   An attorney filing continuances or a defendant continually signing pass slips can be something the Court will look at.  The Dallas Court in Reed stated that a motion to dismiss gets lesser weight than an assertion of the right/motion for speedy hearing in a probation revocation case.

Zamorano also illustrates that very little prejudice need be shown by the Defendant in cases involving considerable delay under the fourth prong of the Barker analysis. In fact, the Texas Court of Criminal Appeals found that missing 11 days of work and having to regularly check in with a bail bond company was sufficient prejudice in light of the delay. Zamorano, 84 S.W.3d at 654.

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SpeedyTrial-300x149The Texas Court of Criminal Appeals analyzes both speedy trial and speedy revocation motion matters under the factors set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). These factors include: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of the right (to a speedy trial), and (4) the possible prejudice to the Defendant as a result of the delay. As applied to this case, the State cannot overcome the presumptive prejudice associated with a thirty eight month delay in executing the capias, a similar delay in hearing from the time of issuance, and at least three of four Barker factors weigh in favor of dismissal.

In Barker, the U.S. Supreme Court stated that the “length of delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531.  The Texas Court of Criminal Appeals has found a two year and ten month delay between arrest and hearing on a speedy trial motion to be “presumptively prejudicial” in a “plain vanilla DWI case.” Zamorano v. State, 84 S.W. 3d 643, 649, 654 (Tex. Crim. App. 2002). In addition, the Zamorano Court found that the factor of delay, in and of itself, weighed “heavily against the State,” after considering the almost four-year delay between arrest and ultimate resolution of the case. Zamorano, 84 S.W.3d at 649.

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TrialAmendmentGoing back to the Constitution of the United States, American citizens are guaranteed a speedy and public trial.   The public part is why a Court cannot bar you from entering to watch a trial unless you are a witness, but the speedy part has been developed over the years.  I will concentrate on the State of Texas right to a Speedy Trial this week, which is overwhelmingly similar to the Federal Right but without a few federal specific statutes that can effect federal criminal cases. Additionally, citizens also have a right to a speedy hearing if the State of Texas files a motion to adjudicate or revoke probation, which is the procedure upon an alleged probation violation to impose sentence or modification.

The Sixth Amendment to the United States Constitution says that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  Article I, Section 10 of the Texas Constitution states that “[i]n In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.”

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Rear view of police detective standing and looking at the paper in front of the wall with map, pictures and sticky notes at office

The Fifth Circuit in Cowart and sister Courts of Appeals note that conspiracy is a distinct offense from that of aiding and abetting, and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.  United States v. Peterson, 524 F.2d 167, 174 (4th Cir.1975) (“Conspiracy” is a separate and distinct offense from that of aiding and abetting, and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.)  United States v. Townes, 512 F.2d 1057, 1058 (6th Cir. 1975) (Conspiring to commit crime with another and aiding and abetting in its substantive commission were distinct crimes, and Government should not have been forced to choose between deleting the aiding and abetting element of second count of indictment or dropping conspiracy charge under third count.)   United States v. Krogstad, 576 F.2d 22 (3rd Cir. 1978) (Even where it is apparent that if one is guilty of aiding and abetting, that person of necessity must also have been a conspirator, the cases are clear that a jury may acquit on the conspiracy and convict on aiding and abetting.)  United States v. Krol, 374 F.2d 776 (7th Cir. 1976) (Aiding and abetting the commission of a substantive offense is a crime different from a conspiracy to commit the same substantive offense.)  Colosacco v. United States, 196 F.2d 165  (10th Cir. 1952) (Evidence justified conviction for aiding, abetting, counseling, commanding, inducing and procuring another to falsely assume and pretend to another to be an agent of internal revenue bureau and to demand money of such other person in such pretended character, and for conspiring to commit such substantive offense.)

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Brightly Red Colored Semi-Truck Speeding on a Two-Lane Highway with Cars in Background Under a Stunning Sunset in the American Southwest

You must be prepared for the Government continuing to say that all or most drugs coming through Mexico or Central America are bound by the United States.  This is an overstatement, and the cartels are always changing up routes and tactics to avoid law enforcement.  The Government will present a litany of evidence of Federal and foreign agents, cooperating witnesses and law enforcement experts on decoding alleged drug conversations to tie the drug shipment to the United States.  But, if you can create a reasonable doubt that the drugs were just as likely to be bound for Europe or Asia than the United States, you could walk your client home.   There is additional doubt that the drugs are to be consumed locally where they are found, but this is not likely enough to overcome the Government testimony by itself.

Look closely for how the testifying conspirators and others were paid.  Were they paid in US Dollars or in pesos or other currency?  What was the historical destination background of the conspiracy as presented?  What can your investigator dig up regarding any relevant flight paths or ports of call related to boats and planes alleged to be used?  Even if you don’t end up going to trial, such information can help you negotiate a much better agreement, perhaps even down to a telephone count or a misprision.

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