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The recent release of Damien Echols, Jessie Misskelley, and Jason Baldwin (also known as the West Memphis Three) may remind the residents of San Antonio and Bexar County of another young man – Ruben Cantu. Ruben Cantu was a Texan who was tried in San Antonio, Texas for the murder and attempted murder of two males at a construction site. While the two cases vary in both the scope of the crimes and the outcomes of those convicted, they can teach us an indispensable lesson in the fallible nature of our criminal justice system.

In both cases, all four young men were all tried as adults (despite the fact that Damien Echols was the only one who was over the age of 18 years old at the time of his alleged crime) and there was no physical evidence linking them to the crimes. In addition, the prosecution’s entire cases hinged on the shaky testimonies of sole eye witnesses. Testimonies that were later recanted.

In San Antonio, Ruben Cantu was convicted and later executed for armed robbery and murder that occurred in 1984. Many believed, and still believe, that Ruben Cantu became the prime suspect months later when he shot an off-duty police officer in a barroom altercation. Was Ruben Cantu framed for a crime he did not commit because of an unrelated incident? In the years following his conviction, the surviving victim Juan Moreno, the co-defendant David Garza, the then Bexar County District Attorney Sam Millsap, and the head juror have all publicly declared that Ruben Cantu’s guilty verdict and death sentence were a mistake. The state of Texas administered a lethal injection to an innocent man.
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The regular 82nd legislative session ended on May 30, 2011, and the following House Bill will take effect on September 1, 2011. This new law will impact San Antonio’s Mental Health docket and criminal defense attorneys and other court staff alike will need to apply the new rules to Defendant’s suffering from mental health problems. The following summary of the law concerns the Code of Criminal Procedure and the Health and Safety Code. This new law, and all Texas laws, can be located at the Texas Constitution and Statutes website. As with all new laws, the changes made apply only to offenses committed on or after the effective date.

HB 748, Relating to a criminal defendant’s incompetency to stand trial, to certain related time credits, and to the maximum period allowed for restoration of the defendant to competency. Code of Criminal Procedures Articles 42 and 46B are amended. Health and Safety Code Section 574 is also amended.

Standards for determining whether a person is competent to stand trial in either a felony or misdemeanor case are outlined in Article 46B of the Code of Criminal Procedure. HB 748 addresses and clarifies standards and procedures that the court system must follow in regards to individuals who are awaiting a determination of competent or incompetent to stand trial.

The bill addresses the disparity in the current law that limits a judge’s ability to give time credit to a person who is waiting for a competency hearing or waiting in jail for a bed to open up at a mental health treatment facility. HB 748 gives a defendant credit for time served in a jail, mental health facility, and residential care facility if that defendant is found incompetent to stand trial. The bill would also compel a judge to give a convicted person credit on their sentence for the time they have already spent in confinement. The time credit would include when a person was confined in a jail waiting to transfer to a mental health facility, release on bail to enter into an outpatient treatment program, or a trial following any temporary restoration of the defendant’s competency to stand trial.
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computer small.jpgA 43-year-old man in San Antonio, Texas was sentenced Friday on 22 counts of possession of child pornography to 220 years in the Texas Department of Criminal Justice. Each count of possession of child pornography, a 3rd degree felony, carries a maximum range of punishment of 10 years. But, Judge Herr of the 186th elected to run each sentence consecutive to one another, making one of the longest sentences that prosecutors can remember in Bexar County history.

During the punishment hearing, the prosecutors presented two women who testified that they were sexually abused by the defendant when they were very young. The prosecutors told the judge that he was not just possessing hardcore child pornography, but he was a sexual predator who would strike again if he was released in 10 years.

What you do in the privacy of your home may not be so private when it comes to the internet. With the internet making information readily accessible, prosecuting cyber and computer crimes has been pushed to the forefront of the U.S. Attorney’s agenda. Recently, U.S. Attorney General Eric Holder made news when he announced that 72 two defendants will be prosecuted in the most expansive possession of child pornography case in U.S. history. U.S. officials used the name Operation Delego to investigate a vast international online community that was allegedly trading graphic images and videos of adults sexually abusing children.
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crime scene tape.jpgA female teenager in Texarkana, Texas has been formally charged with three counts of capital murder in the deaths of a Texarkana woman and her two children. According to reports, the suspect’s mother contacted officials saying that her daughter confessed. After being interviewed at her home, the teenage girl was arrested and remains at a juvenile detention facility. According to police, the girl had information about the May 11th fire that killed the three individuals that only someone at the scene would have known.

There are several ways that a murder becomes a capital offense in Texas. One being whoever “intentionally commits the murder in the course of committing or attempting to commit…arson…” Tex. Penal Code §19.03.

This case raises two interesting legal points. First, privileged communications that are recognized under the law. The Texas Rules of Evidence govern what privileged communications are not admissible in court. There are certain privileged communications that the courts will not allow to be admitted against a defendant in court. For example, the common privilege is the attorney-client privilege. Other common privileged communications are the husband-wife privilege, clergy-penitent privilege, and the physician-patient privilege. There is no parent-child privilege specifically addressed by the Texas Rules of Evidence. There have several attempts by lawmakers to add a parent-child privilege to the Federal Rules of Evidence, however none of them have ever passed. Thus, it remains in Texas and in Federal Court that parents may be forced to provide incriminating information against their own child. Even the few states who do recognize parent-child privilege only apply the privilege to communications between a minor child and his or her parent.
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handcuffs.jpgThe regular 82nd legislative session ended on May 30, 2011, and the following House Bill will all take effect on September 1, 2011. The following summary of the law concerns the Code of Criminal Procedures. This new law, and all Texas laws, can be located at the Texas Constitution and Statutes website. As with all new laws, the changes made apply only to offenses committed on or after the effective date.

HB 351, Relating to the expunction of records and files relating to a person’s arrest. Code of Criminal Procedures Article 55.01 is amended.

Expunging a record is a legal process in which a person, who is charged with a crime, is able to erase or remove completely their misdemeanor or felony arrest records under certain circumstances. Under the current Texas law, the expunction process could be expensive because it must be handled by a private attorney and, in some cases, the statute of limitations for the offense has to expire before the expunction can happen. When the new law takes effect, it will expand the circumstances in which an expunction can happen, establish timelines and mandatory procedures for courts and prosecutors, and abolishes the current rule that prevented an individual who had a felony conviction in the preceding five years from expunging his new case. Under previous law, a dismissed case normally would have had to wait the statute of limitations period before seeking an expunction. Under the new law, certain dismissed cases will be eligible for expunction before the expiration of the statute of limitations.

Supporters of the bill argued that people who are tried for offenses in which they are acquitted , found not guilty, pardoned, or otherwise proven innocent are entitled to “have all records and files relating to the arrest expunged.” In addition, it is unfair to burden individuals whose cases were never prosecuted or who were actually found innocent with a criminal record. This can have adverse effects when those individuals are applying for such things as employment or housing.
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wanted dead or alive.jpgIn a modern twist of the Old West’s wanted posters, twelve digital billboards around San Antonio, Texas are now showing the names and pictures of individuals who have warrants for felony driving intoxicated related offenses with the word “WANTED” directly above the person’s name. In addition to showing the face and name of the suspect, the billboard also lists the specific felony offense they are charged with. The billboards only show individuals who already have an active warrant for their arrest.

According to the San Antonio Police Department, there have been approximately 3,500 driving while intoxicated related offenses so far in 2011. Mothers Against Drunk Driving supports the use of the billboards which are being donated by Clear Channel Outdoor.
The billboards are not the only recent efforts law enforcement officials have implemented this year. The San Antonio Police Department working in conjunction with the Bexar County District Attorney’s Office are now making all weekends and most long holidays, such as the week of Fiesta, “no refusal” weekends. This means if an individual arrested on suspicion of driving while intoxicated refuses a breath test, the officer will get a warrant to draw the individual’s blood. Defense attorneys practicing in Bexar County have also noticed the plea offers for all DWI’s have increased.
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gavel.jpgIn San Antonio, Bexar County and the surrounding counties, I have repeatedly had prosecutors tell me during plea negotiations that an offer they made my client was higher than normal due to my client’s prior arrests. Most recently, this week in Hays County, Texas I was told by the prosecutor that the lengthy offer on my client’s misdemeanor possession of marijuana was due to his numerous arrests that only resulted in one conviction for misdemeanor driving while intoxicated. As I explained the substance of these cases, the prosecutor told me he did not care about the facts or that they were all dismissed. He only cared that he had been arrested so frequently. The only way the prosecutor knows about the arrest is by looking at printout in the file and not reviewing the police reports. Although the prosecutors are not the ones who ultimately impose the sentence, their recommendations that consequences that may ensue from rejecting a plea offer (i.e. the prosecutor making a higher recommendation if the defendant goes open to the judge for sentencing).

The Fifth Circuit Court of Appeals recently held in United States v. Johnson that it was error for a District Court Judge to grant the U.S. Attorneys request for an upward departure based in part on the defendant’s prior arrests that did not result in convictions, despite their similarity to the instance offense. The District Court judge even advised that he was not considering the arrests per se, but was considering the underlying course of conduct due to the similarity of the offenses. The Court of Appeals cautioned that the only evidence before the court of the conduct of these arrests were the bare arrest reports, which are unreliable. The Court ruled that taking these arrests into consideration to upward depart from the guideline sentence violated due process.

Thus, in my opinion and in light of the 5th Circuit’s recent opinion, the prosecutors are unlawfully considering unadjudicated offenses when negotiating plea agreements. The previous arrests were dismissed for a reason and therefore should not used against a defendant in future prosecutions.
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The regular 82nd legislative session ended on May 30, 2011, and the following House and Senate bills will all take effect on September 1, 2011. The following summary of the laws concern the Texas Penal Code, the Business and Commerce Code, the Alcoholic Beverage Code, and the Family Code. These new laws, and all Texas laws, can be located at the Texas Constitution and Statutes website. As with all new laws, the changes made apply only to offenses committed on or after the effective date.

HB 2577, Relating to the unlawful use of a criminal instrument or mechanical security device; providing a penalty. Texas Penal Code Section 16.01 is amended.
So, what exactly is a criminal instrument or mechanical security device? Any tool that is legal to buy or own, but is intended to be used in a crime. For example, owning an electronic lock-pick (like the kind used by a locksmith) is not a crime. But, using said lock-pick to break into someone else’s house is a crime. Under the new law, subsection (a) (1) states that a person who possesses a criminal instrument or mechanical security device with the intention to use in a crime can be charged. Penalty is one category lower that the offense intended. Subsection (a) (2) states a person who manufactures, adapts, sells, installs, or sets up an instrument or device to use or aid another person to use them can be charged. Penalty is a state felony.

SB 488, Relating to criminal background checks on users of online dating services and to disclosures of online dating safety measures; providing a civil penalty. Chapter 106 is added to Business and Commerce Code.

Finding someone special just got a little safer in the state of Texas. Under the new Internet Dating Act, providers must disclose to its members whether or not they conduct background checks, and whether or not they exclude or allow people with criminal records to utilize their website. When conducting a background check, online dating providers must check for any felony offenses, any sex offender registrations, and any convictions of family violence. Texas requires websites to provide a statement, or “Safety Awareness Notification”, that reminds members that background checks are not 100 percent fail-safe, criminals are able to manipulate technology, not all states make criminal records public, and the background checks do not cover foreign convictions and are limited to the three checks listed above. Websites that do not comply with the new law by September 1, and do not act in accordance with the law, are subject to civil penalties.
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On Thursday, July 7, 2011, the state of Texas executed Mexican National Humberto Leal Garcia Jr. for the May 21, 1994, rape and murder of San Antonio native Adria Sauceda. Garcia had been tried in Bexar County, Texas and received a First Degree conviction. Garcia’s case received international attention because he was denied his right to speak to the Mexican consulate. At the time of his arrest, Garcia did not reveal that he was a Mexican national and the issue of his nationality was never raised during the trial by his court-appointed attorney. As such, Garcia was not informed of his right to contact the Mexican consulate under the Vienna Convention. The Obama admininstration objected to Garcia’s execution arguing that it did not follow international law and could effect the rights of American’s who travel abroad.

The Vienna Convention on Consular Relations of 1963 is an international treaty that outlines the legal rights between countries. The consulate works at an embassy in a foreign country. One of their main functions is to protect the interests of their countrymen in the foreign country. Under Article 36, a foreign national is to be informed “without delay” of their right to contact their embassy and consulate if they are arrested. But, in Garcia’s case he was denied this important right and he paid the ultimate penalty with his life. President John F. Kennedy once said: “For our nation is founded on the principle that observance of the law is the eternal safeguard of liberty – and defiance of the law is the surest path to tyranny.” –President John F. Kennedy, Speech on Civil Rights, September 30, 1962 . With the execution of a man in the United States who was denied one right, we have failed our system of justice.

It is no secret that almost every year Texas sits at the top of the list for executing more prisoners than any other state. Governor Rick Perry has cautioned that “…if you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws.” Statement from Governor Rick Perry’s office.
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photo.lineup.image.jpgTexas has been receiving attention over the past several years for the number of wrongful conviction in our state. Although Texas has far more wrongful convictions overturned by DNA evidence than any other state, this is a problem nationwide. The overwhelming majority of these wrongful convictions are due to erroneous eyewitness testimony. According to a report issued by The Justice Project in November 2008:

“Faulty eyewitness identification has played a role in over 75% of the 223 DNA exoneration cases in our country thus far, making mistaken eyewitness identification the leading cause of wrongful conviction in the United States. The same holds true in Texas where 82% of the state’s 38 DNA exonerations involved mistaken eyewitness identifications…Because eyewitness evidence, much like trace physical evidence, is susceptible to contamination if not collected properly, some identification procedures can actually increase the risk of false identification.”

The United States Supreme Court has also recognized the substantial role that eye witness testimony plays in wrongful convictions. See United States v. Wade, 388 U.S. 218, 228 (1967). The “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identifications.” Id.

Recognizing the problem with eyewitness identifications, the Texas government has passed a bill that addresses how law enforcement agencies obtain the identifications. Texas House Bill 215, will require Texas police departments to have in place new eyewitness identification procedures. This bill shows that at least the Texas government is aware there is a problem with our justice system that needs to be fixed.

HB 215, codified as article 38.20 in the Texas Code of Criminal Procedure, requires all law enforcement agencies in TExas who regularly conduct photograph or live lineup procedures when performing the officer’s official duties. According to the bill, law enforcement agencies can either adopt the model policy created by the Bill Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University or the law enforcement agency may adopts it’s own written policy that conforms to subsection (c) of Article 38.20.
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