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supreme court.jpgIn San Antonio and other courts throughout Texas, many Mexican citizens take plea deals every day. Before 2010 the only requirement for non-U.S. citizens taking pleas was that the defendants must be warned that they may face deportation, removal from the country or denial of U.S. citizenship. However, on March 31, 2010, the United States Supreme Court filed its decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) holding that “counsel must inform her client whether his plea carries a risk of deportation.” Padilla at 1486. “When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” Padilla at 1483. This means that a defense attorney must adequately advise a non-U.S. citizen of how the plea may affect his or her status in this country.

The U.S. Supreme Court went on to explain: “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Id.

But a big debate throughout Texas is whether Padilla announced a new rule of law that bars it from being applied retroactively. Or does Padilla just clarify a longstanding rule of law, allowing it to apply to cases that were final prior to the Padilla opinion?

Texas Courts have been applying Padilla retroactively to cases that were final before the opinion was rendered. In Ex parte Tanklevskaya, 2011 WL 2132722 (Tex. App.–Hous. [1Dist.] 2011), the Court of Appeals denied the State’s claim that “Padilla announced a ‘new constitutional rule of criminal procedure’ that should not be applied retroactively to cases on collateral review.” Id. at *4; citing Teague v. Lane, 489 U.S. 288, 310 (1989). That Court, agreeing with other Courts in Texas and around the country, held that Padilla does not apply new rule of criminal procedure but is an extension of the rule in Strickland v. Washington and therefore applies retroactively. Id. at *7.
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overton.jpgIn the first part of our Hannah Overton blog, we reviewed the facts of her 2007 capital murder trial and the procedural aspects of the case that placed her back in court. She was found guilty by omission in the poisoning death of 4-year-old Andrew Burd and sentenced to life in prison without the possibility of parole.

While it is true that Overton was tried in a court of law by her peers, there is a question of whether a miscarriage of justice occurred. In February of this year the Texas Court of Criminal Appeals decided that a hearing needed to be held to determine if Overton got a fair trial. On Monday, April 23, an evidentiary hearing began to determine if there is enough evidence to grant Overton a new trial, to allow her to go free, or if the decision stands. Her criminal defense lawyers are arguing key points: the prosecutors failed to turn over favorable evidence to the defense, she had ineffective counsel during the trial and that she was not convicted on reliable science. Judge Jose Longoria of the 214th State District heard statements for six days and now has one month to send his recommendation to the Court of Criminal Appeals.

There were many people who were called to testify during the hearing. Attorney David Jones told the court that he was sorry for the way he handled the original trial. During questioning in the hearing he broke down in tears and stated that there was more that he could have done for his client. Jones stated that he did not review a videotaped deposition of the world’s leading expert on sodium intoxication before the defense decided not to use the video before the jury. He said that this video proves that Hannah was innocent.

Former lead prosecutor Sandra Eastwood admitted that she had been taking diet pills and was drinking alcoholic during the trial. She testified that she was an alcoholic. During the hearing she said that she cannot recall certain details of the trial, but she was adamant that she did not withhold evidence. Eastwood was fired in April 2010 from the district attorney’s office on charges unrelated to the Overton trial. In addition, Anna Jimenez, who was appointed as District Attorney of Nueces County after the Overton trial and who sat second chair during the trial, claimed that Overton should not have been tried for capital murder and she recounted how she repeatedly went to her bosses during the trial to complain of Eastwood’s unethical behavior.

Dr. Ray Fernandez, the Nueces County Medical Examiner, also took the stand last week. Fernandez had been the person who ruled the death a homicide. He has said that he will review any and all new evidence, and may change the cause of death if it is warranted.
Local pediatrician Dr. Edgar Cortes saw Andrew twice in the months before Andrew’s death. He testified that he had told Eastwood that he believed the boy’s death was an accident. He also had information that this child was not a normal child and that he had cognitive delays and other problems. The state during the trial painted young Andrew as a normal, healthy child.
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Hannah Overton, who is currently serving a life sentence without the possibility of parole, is back in the 214th District Court in Nueces County, Texas for a hearing on her application for a writ of habeas corpus with her writ lawyers lead by Cynthia Orr and assisted by Gerry Goldstein, John Raley and Dayna Jones. In 2007 Hannah was tried in the 214th District Court, Nueces County, Texas. She was found guilty of capital murder by omission in the poisoning death of 4 year old Andrew Burd.

In a rather uncommonly strict remand order, the Court of Criminal Appeals ordered on February 8, 2012 that the trial court must hold a hearing with live testimony within 90 days of the order and that all supplemental findings and conclusions of law must be returned to the Court of Criminal Appeals within 120 days of the order. Justice Cochran, joined by Justices Price and Johnson, issued a statement concerning the remand order. In that statement, Justice Cochran gave direction to the parties and the trial court on what needs to be decided in this matter. “The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence–scientific evidence that will hold under later scrutiny.” Justice Cochran went on to say: “The problem in this case…is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available.” Justice Cochran concluded by stating: “These are not easy issues, but fairness both to the applicant who is serving a sentence of life without parole and to the State and the memory of the child victim, demands that our verdicts will withstand the test of time such that the guilty are punished and the innocent are not. Further, public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence.”

In addition to wading through the scientific evidence, Judge Longoria will also hear testimony concerning whether the state withheld Brady evidence, whether trial counsel were ineffective and whether Hannah is innocent based on newly discovered evidence.
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trayvon.jpgStand Your Ground Law, Shoot First Law, Castle Doctrine, Make My Day Law, Defense of Habitation Law – There are many names across the United States used to describe the approved use of deadly force by a person who feels threatened. In the wake of the shooting death of Florida teenager Trayvon Martin, emotions on both sides of the proverbial fence have been running high. George Zimmerman, the man who fired the fatal shot that killed 17-year-old Martin, is being charged for second degree murder. The outcome of the trial remains to be seen, but the events surrounding both Martin and Zimmerman have many people asking the same question, what is a self-defense law? In Texas, the law is found under Chapter 9 of the Texas Penal Code.

In March 2007 Governor Rick Perry signed Senate Bill 378, a law which allows Texans to use deadly force when they are threatened in their homes, cars, and public areas. The bill took effect September 1, 2007. This bill amended the previous law that had been in place. The biggest change to the law was the removal of a person’s “duty to retreat”. This means that Texans no longer have to make an attempt to leave a potentially dangerous situation before using deadly force in self-defense.

Chapter 9 of the Texas Penal Code clearly states when, where, and why force may be used by a person to defend themselves or others. In addition to protecting one’s own self from harm, the law states:
1. A person is justified in using deadly force against another to protect a third person
2. A person is justified in using force, but not deadly force, against another when the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself 3. A person is justified in using force against another when the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property Continue reading

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dwi.jpgTwo intoxication manslaughter trials in San Antonio had many commonalities, but wildly different outcomes. Sandra Briggs had a blood alcohol level of 0.14 and Jenny Ann Ybarra had a blood alcohol level of 0.13. Both accidents occurred on Loop 410, Assistant District Attorney Charles “Chip” Rich was a prosecutor in both trials, and both were sentenced to prison. But, Ybarra was sentenced to 2 years while Briggs was sentenced to 45 years. It seems that, when it comes to punishment, irregularity and inconsistency play a large role during DWI trials in San Antonio. The difference between the two cases – Ybarra’s victim was a young woman and Briggs’ was a San Antonio Police Officer.

Briggs, 59, was arrested in October 2010 and she was convicted of a first degree felony on January 20, 2012. She admitted to drinking at Bunratty Pub and stated that she had five drinks in about four hours. On her way home she hit a disabled pickup truck that was stopped near the Military Drive exit of Loop 410. She then ran to into Sergio Antillon, 25, an off duty rookie police officer, who was standing about 10 feet from the truck. He was pinned between Briggs’ car and the guardrail. He died two weeks later when he was taken off life support. She stated that there were no flares on the road and the pickup truck was partially in the right hand lane.

Briggs pleaded no contest to intoxication manslaughter and the trial, which was held at the 186th state District Courtroom, was a punishment only jury trial. Criminal Defense Attorney Edward Piker argued that there were more than just the drinks that played a factor in the wreck, including the darkened roadway and the fact that the disabled truck was blocking part of the lane. The Bexar County jury deliberated for about four and a half hours before handing down the punishment. She has to serve at least half her sentence and is eligible for parole at the age of 81.

Ybarra, 32, was sentenced to a second degree felony on February 15th, 2012, for the early morning accident in December 2007 that claimed the life of Erica Nicole Smith, 23. She had been out with friends that night and had not been driving. She had planned to stay the night at a friend’s house, but decided to drive home at about 3 AM so she could be there in the morning when her daughter woke up. Ybarra unknowingly drove the wrong way on Loop 410 and had a head-on collision with the car that Smith was riding in. While, on the surface, it seems that this was a very cut and dry case, there were several factors that contributed to the accident.

Sabrina Shaner, the driver of the car that Smith was a passenger in, was also intoxicated at the time of the accident. In addition, it was found that the paramedics delayed help to the victim. EMS left Smith untreated for more than two hours because they assumed she was already dead. Smith would die of massive head trauma. The three San Antonio paramedics had their certifications suspended in 2008 because they did not immediately check on Smith.
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JimmyParks2012.jpgFamily, friends, and the San Antonio criminal defense community recently said goodbye to attorney James “Jimmy” Parks, Jr. He was an accomplished criminal defense lawyer, with over 25 years of criminal law experience.

Parks attended Saint Mary’s School of Law and went on to establish himself as one of the best defense lawyers in the country. His clientele included boxer Tony Ayala, Jr., ex-Spur Alvin Robertson, and South San Antonio Independent School District Superintendent Ron Durbin.
He received several distinctions, including: Best Lawyers in America; Scene in SA Best Lawyers in San Antonio; Texas Monthly – Top Attorneys; and Texas Super Lawyers – The Top Attorneys in Texas. He also authored the DVD Series “Winning in the Courtroom.”

In addition to his impressive legal career, Parks also was a local radio personality. He was a high school football sideline broadcaster for San Antonio radio, appeared in Star 810 AM, and was a guest on KTSA’s “Gang of Four Show”.
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After 85 years, the federal definition of rape is being updated. On December 6, 2011, a Federal Bureau of Investigation advisory board voted to expand the definition and Director Robert Mueller accepted the recommendation. The former definition was established in 1927 and can be found under the FBI’s Uniform Crime Report. The old definition stated that rape was “The carnal knowledge of a female forcibly and against her will.” The old definition excluded oral and anal penetration, the rape of males, the penetration of the vagina or anus with an object or body part other than the penis, the rape of females by females, the rape of children, and non-forcible rape.

The new federal definition of rape can be found on the FBI Uniform Crime Report website. Society has long acknowledged that rape can happen to women, men, and children. The new definition takes out the word “forcible” and includes men and children. It expands to include any nonconsensual penetration, regardless of the gender of the attacker or the victim. It also includes those who are mentally or physically incapable of giving consent.

The women’s rights community has claimed this as a victory for victims of sexual violence. Vice President Joe Biden, who authored the Violence Against Women Act when he was a senator stated that victims have suffered long enough.

Even though 84,767 rapes were reported in 2010, many experts claim that the sexual assault numbers are too low. The underreporting of rape affects the federal funding for resources. The Centers for Disease Control and Prevention report that 1-in-71 men and 1-in-5 women will be raped in their lifetime. For expanded information on sexual violence, refer to the CDC website .
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WarrenJeffsMug.jpgWarren Jeffs has made the news again, this time from inside a Texas prison. His phone privileges have been cut off for 90 days, which started on January 6, 2012 following an investigation by the Texas Department of Criminal Justice. They looked into whether or not he abused his phone privileges. Though his phone privileges have been revoked, he is still allowed to receive visitors.

According to prison officials, calls Jeffs made out to people on his approved call list were put on a speaker by the person who received the call so he could preach to members of his church. Putting a phone call on speaker violates the rules of the Offender Telephone System. It is believed that Jeffs violated the phone rules several times, with at least two violations on Christmas Day. While the rules do not bar an offender from preaching from prison, officials state that an offender is not to talk to a group – they are limited to speaking to the one individual who is approved to receive the phone call.

According to the Texas Department of Criminal Justice website, the rules for the Offender Telephone System are as follows: available from 7 AM-10 PM, 15 minute time limit, and each offender has 240 minutes a month to use. All calls are subject to monitoring and recording, except for those calls between the offender and their lawyer. No calls are allowed to cell phones, internet services, 800 numbers, businesses, pay phones, or international numbers. The owner of the telephone number must be listed on offender’s Visitor’s List. Visitors can register their number by internet (texasprisonphone.com) or by telephone (866-806-7804). The person who receives the phone call from the offender must agree to not forward calls or make 3-way calls. It is interesting to note that the rules do not specially list putting a call on speaker phone as a violation.
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Arguments at the United States Supreme Court continued on December 6, 2011, as the justices heard oral arguments for the case of Sandy Williams, Petitioner v. Illinois Docket (#10-8505).

This is a case that pertains to the Sixth Amendment – specially the Sixth Amendment’s Confrontation Clause. The Sixth Amendment states that “in 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 defense.” The Confrontation Clause deals with the phrase “to be confronted with the witnesses against him.” In other words, a person who is on trial has the right to see the witnesses who are offering testimonial evidence against them and they have the right to cross-exam the witnesses during the trial. (Furthermore, the Fourteenth Amendment makes the right to confrontation apply to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.)

In this particular case, a DNA report was prepared by a third party, private lab. During the trial, the actual report was not admitted and none of the lab analysts who conducted the tests ever testified. Instead, an Illinois State Police forensic analyst was called to testify. This expert was never involved with nor observed the actual tests, and therefore had no knowledge of the methods used to obtain the results.
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Thumbnail image for supreme court.jpgOn October 12, 2011, the United Supreme Court continued its new term and heard oral arguments on a case that is a Fourth Amendment issue. The Fourth Amendment to the United States Constitution, which applies to the citizens of San Antonio, states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the oral arguments are over, the opinion from the court is to be determined.

Albert W. Florence, Petitioner v. Board of Chosen Freeholders of the County of Burlington, et al. raises the question of whether or not a jail or prison has the right to conduct a strip search on every person who is taken into custody, no matter what the charge(s) may be. This is a Fourth Amendment issue dealing with suspicion-less strip searches – should there be a flat rule or should it be determined on a case by case basis? This particular case began in 2005 when Florence was in the car with his pregnant wife and 4-year-old daughter on their way to dinner at his mother-in-law’s house. His wife was driving and was pulled over for a routine traffic stop. Because the car was registered in Mr. Florence’s name, the officer asked to see his identification in addition to his wife’s. When the information was checked, the officer saw that there was a warrant for Florence because of an unpaid fine. Florence carried a copy of the court record to show that he actually paid the fine, but the officer took him into custody anyway. Florence was in custody in both Burlington and Essex Counties for a total of six days before he saw a judge, at which time he was immediately released. While he was in custody, Florence was subjected to two strip searches. Florence filed a lawsuit because he asserted that the searches were unreasonable because he was being held for failure to pay a fine, which is not a criminal offense in New Jersey (and let’s not forget that he had already paid the fine).
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