Notable Victories

Protecting the bartenders!  Client/bartender was charged with a class A misdemeanor (1 year jail and $500) for over serving a regular who chose to drive home and was involved in a deadly accident. Over nine hours, on Superbowl Sunday, our client served the Regular five 34oz beers and a fireball shot. No TABC violation of serving more than 2 drinks at a time. Regular ate wings, salad, and bottomless queso. The bar was legally allowed to serve these big beers.  Our client and her friend both tried to offer the regular a ride home. Regular looked and sounded normal, but insisted on driving. The regular had a terrible accident and TABC found the receipts in the regular’s pocket. Our client loved this regular. Was her friend. TABC tried to come after the bartender for serving even after the establishment settled the civil case. The TABC officer was overzealous and kept trying to violate the motion in limine by telling the jury  it was a fatality accident involved. State finally did the right thing and dismissed the case at the close of their evidence. We were resting anyways. Jury said they were all going Not Guilty.  Judge was very fair and it was nice being back in Travis County courts. Best of all, it was great trying a case with my law school compadre, friend and co-counsel: James R. Gill.  Honored to protect the service industry for doing their job.

Mid Trial Dismissal!  Client worked for a bar on Super Bowl Sunday.  One of her regulars came in and drank 5 34 ounce beers and a shot of fireball over a 9 hours span.  The client tried to get the regular a ride home, but she insisted on driving.  The regular was involved in an accident and died shortly after leaving the bar.  TABC found various receipts in the regular’s pocket.  The bar settled with the family of the regular in the civil case, but the DAs still wanted to make an example out of the poor bartender.  I cross the corporate manager of the restaurant chain and the TABC officer.  After the cross of the TABC officer the DAs did the right thing and dismissed the case.  The jury said they were all coming back Not Guilty anyways.  The client didn’t violate any TABC laws by serving more that 2 drinks at a time.  The regular never showed any signs of intoxication.  It was a tragic accident, but it was not a crime for the bartender to serve the regular that amount, over that time, with food and at her body weight.

Client was on his way home from work and stopped to see some friends. Burning the candle at both ends, he fell asleep at Chimney Rock and Westheimer light. He was woken up by the police and began crying immediately and asking to go home. He was very emotional as this brought great shame on him and his whole family. He tried to perform the standard field sobriety tests, but couldn’t through his emotions. He was arrested and they drew his blood. The issue was that although he was around twice the legal limit, we didn’t know what he was at the time of driving. Texas is an at the time of driving state and the DAs could not prove if he was over a 0.08 at the time of driving. The jury understood and it was a hard decision, which they ultimately could not come to. In the end the jury hung. The DAs offered some classes and AAs and dismissed his case. Sometimes not every case can reach a verdict, but I’m proud of those jurors who understood the law and remained true to their reasonable doubt. What a stuck jury should never do is err on the side of guilt. Whether it’s a jury of 6 or 12 people, if just one juror has a doubt, then the State didn’t prove their case and the default must be a Not Guilty verdict. If a jury is hung then they should either stay hung or err on the side of freedom.

Client was a young man who couldn’t sleep and went out for a couple beers in Boulder, Colorado. When he was on his way home he mistakenly turned the wrong way on a one way street, when he was pulled over. He explained to the officers that he had just moved to town about a month prior. They made him step out and perform Roadside Maneuverability Tests in a t-shirt in March. He was cold but looked pretty darn good on tape. He was still arrested and they asked him for a sample of his breath, to which he complied and blew just over the legal limit. However, after my cross of the officers who were in charge of administering a proper breath test, the DAs agreed that the officers completely messed up the testing. They did not watch him, he burped and touched his mouth repeatedly from indigestion. These officers all learned that day how to properly administer a breath test that day. Thank you to the DAs for doing the right thing and dismissing the case. The judge remarked that after such a skillful cross-examination that negated a ton of evidence, it was nice to see some honor on the DAs side by doing the right thing and dismissing it. In the end, honestly, his indigestion was why the breath test was just a bit over. He looked and sounded completely normal but we couldn’t figure out why the breath was over — until we slowly and methodically exposed the problems in the administration.

Motion to suppress granted, affirmed by the Court of Appeals. Case dismissed. Our client was found asleep in her car on a public roadway. Not driving or attempting to operate the vehicle in any way. Others on the scene, believing that she was having a medical emergency and not just sleeping, called the police. When our client woke up, she was groggy, disoriented, and understandably confused about the strangers and the police that were now prying her with questions. When the officers arrived on the scene, they were told by other civilians that she “couldn’t walk a straight line,” and that she “smelled like a bar.” When our client refused field sobriety testing, the officer arrested her without a failed blood alcohol test, and therefore, without a warrant. We moved to suppress the evidence in the trial court on the basis of illegal detention, search, and seizure. Not only did they arrest her without proving intoxication, but during the review the state was unable to bring forth a single witness that has seen our client actually operating a motor vehicle. The motion to suppress was granted and affirmed on the basis that our client was arrested without a warrant, and was never seen operating a motor vehicle. Thank you to the Judge for upholding due process in service of justice.

Intoxicated Assault. The Judge properly heard the investigations by the police of the client. The client was leaving a wine tasting and had a terrible accident. However, the witnesses agreed more with her recollection of events and everything the officer saw was just as indicative of sober behavior as intoxicated behavior. The Judge was provided case law on point and followed the law. Great Judge with great courage. Was truly an honor being in his Court.

.17 BREATH TEST!!!! Dismissed Mid-Trial. Client was found passed out in her car and HFD had to come pry the doors open. She was given the HGN by an HPD DWI Task Force officer who has been giving the test for the past 12 years. Just 20 days before this case, I was able to cross this officer at an ALR hearing. He didn’t know any of the passes or any of the timing. It was so bad, the Judge sua sponte suppressed the HGN to stop my cross of him. I then went on to cross him on the walk and turn and the one leg stand. Again, this DWI Task Force officer, who has been making arrests for 12 years and just took an ARIDE refresher course last week could not remember the clues. It was the worst officer I have ever seen. Then finally, when asked about the fifteen minute waiting period and the temperature of the simulator solution, he did not know. The Judge suppressed the breath test and the State promptly dismissed the case. What’s scary is this officer is DWI Task Force and currently still arresting innocent drivers on tests he knows nothing about. It was a terrible display by an HPD officer. Kudos to the Judge and the State for doing the right thing.

.22 BLOOD TEST!!!! Client was involved in a one car accident and stuck a pole. The video quality was terrible so we really didn’t see any video. I had Facebooked the arresting officer who had some pretty outrageous stuff on his wall. During a break, I made mention of it and told him I would take it easy on him. It must have really messed his head up, because he just rolled over and turned into putty during cross examination. The officer testified that he saw no loss of mental or physical faculties on the client. Additionally, my second question to him was what is the definition of intoxicated. He did not know. How can an officer make arrested for DWI when he doesn’t even know the definition of intoxicated? The Judge and the State were pretty disgusted by this officer’s training. The State made the call to cut this case early and not waste any more of the tax payers money. Kudos to the State for doing the right thing. You are appreciated.

.16 BREATH TEST!!! Client is a bartender and went to have a drink after work with a friend. While driving home from a guys house she fell asleep and barely struck a pole. No scene video, but there was a station video where the client looked good and consented to a breath test. The jury never even got to hear the breath test because the State dismissed the case midtrial after absolutely terrible testimony from the arresting officer. In fact, I believe the State even complained to the force about this officer. He had no business arresting anyone for DWI. Thank you to the State for being fair and cutting a bad case when it needed to be. It was the fair decision and took a lot of courage.

After a long year and a half battle, the State dismissed a very difficult case. The client was the husband of a criminal defense lawyer. However, at the time of arrest, he was not married and dating another woman. On a raining evening, his car slid off the freeway at a curve, went across the grass median and struck an oncoming vehicle. The client was thrown from the vehicle and his girl friend passed away in the accident. This was only 3 days after he got out of jail for a prior Intox Manslaughter conviction. He was life flighted to Corpus Christi and they withdrew his blood without a warrant. No alcohol was preset; however, Xanax was. The state charged him with Intox Manslaughter, Intox Assault, and a few other cases. I was hired solely to handle the blood evidence. I successfully had the blood suppressed in a McNeely hearing due to a warrantless blood draw with no exigent circumstances. The forensic blood was suppressed but the hospital blood test still showed presence of Xanex. The DA was highly reasonable and the offer went down from 15 years on the Intox Man, to 2 years on the Intox Assault with no deadly weapon finding. The Intox Manslaughter 2nd was dismissed. We were prepared to fight the case to the bitter end based on illegally obtained evidence and the scientific unreliability of hospital blood testing. However, the DA in Wharton is a class act. It was a true pleasure working on this case against him. He was highly profession, courteous, and ultimately very reasonable. I have the utmost respect for him. Client was very happy with the result and I believe it was fair for such a tragic accident.

Client allegedly beat up 3 bouncers at a local watering hole. My client was an old college linebacker. After almost a year of this case going, the case was ultimately dismissed. However, I was ready! I took this case with me to a Gerry Spence seminar and worked it up with some of the top lawyers in the nation. We were able to climb inside the skin of the different parties and recognize the underlying motivations. I am thankful to the DAs for this dismissal. My client can now move on with his life and go back to defending our country overseas. I hope all the parties can move past this and maybe someday become friends.

Client was accused of sexually assaulting his daughter. He passed a polygraph examination for us. The outcry of the alleged assault came after his daughter was caught having sexual intercourse with her boyfriend. The outcry was to her step mother at the time, the client’s ex-wife. Through intense investigation and child psychologist assessment, the daughter did not appear credible. Anger at her father is not a reason to allege such disgusting and horrific allegations. The only thing worse than be accused of sexually assaulting a child, is being WRONGFULLY accused of sexually assaulting a child. The DA made the right choice and dismissed the case after reading our grand jury packet and the physiologist’s report.

0.137 BREATH TEST!!!!! After two full days in trial, the ADA dismissed the case before the jury walked in for the third day. Despite the Judge overruling almost every objection of mine, letting in all of the State’s evidence, telling me to keep my mouth shut, the honorable ADA did the right thing and dismissed the case. It was a disaster from the start: the arresting officer testified that the client was doing 90-100 mph, and he would have to do 110+, he admitted that he wouldn’t do that in the rain. When confronted with the weather almanac he still denied it raining. Really? New Years Eve 2013, I was partying in my garage with everyone because it was raining so bad. Then that officer said another officer drove the client to the jail. The SFST officer stated he never went out to the scene. Obviously the patrolman was just unhappy from spending new years working. The client looked great on the station video and consented to a breath test. She blew a .137. However, the calibration thermometer was malfunctioning and the 15 minute required observation period was not followed. I would like to think the jury would find the client Not Guilty, but I’ll never look a gift horse in the mouth. The ADA realized they had a lying officer and were stuck with an invalid breath test. Without the breath test, she looked great. So thank you ADA, you were honorable, just and showed tremendous character.

Allegedly, client was attempting to smuggle a gun into Mexico in a paint can. However, using an investigator and old fashion beating the streets we were able to show the DA that the ”complaining witnesses” were just young punks that owned a sketchy bus stop and were trying to shake my client down for money. It’s a true shame when illegal aliens get railroaded by shady people. Not on my watch!

0.16 BLOOD TEST. It was client’s second DWI and there was no room for bargaining. We tee’d it up and were ready to fight. Had Amanda Culbertson ready to testify about the problem with Harris County Institute of Forensic Sciences gas chromatography. We weren’t going anywhere. After a year we were finally up for trial. The State had witness problems and had to dismiss it. Thank you to the State for this gift. I also did not charge the client a trial fee even though I spent considerable time preparing. There are a thousand ways to skin a cat. You just have to have the guts to trust in your lawyer and go all the way. Good things happen when you set it for trial!!!

Client was the president of his fraternity at UH and on the Dean’s list. One random night him and some friends squirted the hand held fire extinguisher in the dorm hallway. UH dorms tried to charge him over $1500 saying it could possible damage the electronics and air conditioning. Seriously?! Thank god I had a reasonable DA who allowed justice to prevail and this bright and talented young man to continue on his path to a great life. Kudos to the DA.

FELONY EVADING ARREST. Client was arrested and charged for leading Troopers on a high speed chase. Problem is, it never happened. Crooked cop. I pulled his camera records: none. I pulled his mobile data terminal log: no evidence of hot pursuit. And we had recorded messages of Trooper harassing my client. Needless to say we have filed an Internal Affairs investigation against this Trooper.

Client came out of Roeder’s Pub and backed into a vehicle in the parking lot. An off duty UH dispatcher phoned it in and started the snowball. I was able to pull the call and call slips to show the dispatcher requested his favorite officer, who WAS NOT EVEN CERTIFIED to administer the standard field sobriety tests. Client was very argumentative and cursing on the station video. However, the DA dismissed the case on the day of trial after learning of my discovery.

0.14 BREATH TEST! two and a half hours after someone ran into the back of him at a stop light. He looked spectacular on video and science would say he was a 0.18 at the time of driving. Just didn’t add up. But the fact the technical supervisor couldn’t extrapolate the number back to the time of driving and the Intoxilyzer operator never checked the temperature of the machine….whoops, there goes the breath test. Thousand ways to skin a cat.

Client left the Corrillion center and was pulled over swerving on Westheimer due to the construction. Client urinated himself in the back of the police car and then got out and performed poorly on the Standard Field Sobriety Tests. Medical records of plantar warts and prostate issues put this case up on the wall. The fact that the Officer was fired from the DWI Task Force pushed this case over. The Officer was fired because of his terrible testimony during my cross-examination in a trial I won (State of Texas v. Robledo), just three weeks prior.

0.13 BREATH TEST! Client was pulled over at 3 am on West Dallas by DWI Task Force. Full scene videos of client “failing” field tests. Had medical records for ankle and GERD. 1st DWI, nothing to lose. Machine was removed from service 3 times in 3 months.