You’ll Get a Jury and Like It!

“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.  However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the court.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made "in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

The Beauty of Specialty Courts

As I'm sure you've noticed by now, specialty courts (drug courts, DWI courts, reentry courts, etc.) are rapidly becoming the norm in most criminal jurisdictions.  Why the increase in popularity?  Simple.  They work.

The National Association of Drug Court Professionals' website cites the five primary goals these programs are working to achieve.

     1) They reduce crime
     2) They save money
     3) They ensure compliance
     4) They combat addiction
     5) They restore families

Incarcerating addicts only delays their inevitable addiction cycle.  Specialty courts offer a real, life-changing alternative that not only aid individuals in their battle against addiction, but also improve the crime rates in every community in which they exist.  These specialty courts work to provide intense supervision through the cooperative efforts of local probation offices, prosecutors, defense attorneys, and, most importantly, judges. Read more about it here.

If you haven't researched specialty courts in your jurisdiction, I'd highly encourage you to do so immediately.  These programs could offer your present clients an incredible opportunity your previous clients didn't have.  Let's hope specialty courts continue to gain traction, and that more specialty court keep popping up throughout Texas.  It is important to remember that the criminal justice system is not always about punishment, it's also about rehabilitation.

Reasonable Suspicion for Traveling Below the Speed Limit?

Delafuente v. State (14th Court of Appeals) April 3, 2012

I observed a traffic congestion in the inside westbound lane [on Interstate 10 in Waller County].  Traffic volume was moderate.  I inspected further and observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie limit of 65 miles per hour and Impeding Traffic.  I paced the vehicle, which was traveling at approximately 52 miles per hour . . . . I initiated a traffic stop of the vehicle.

This traffic stop led to the search of the vehicle and the seizure of marijuana.  The driver of the vehicle was later convicted of Class B misdemeanor possession of marijuana.  The primary question on appeal to the 14th District Court of Appeals (Houston) was whether a vehicle traveling 13 miles an hour below the posted speed limit necessarily creates reasonable suspicion to initiate a traffic stop.

The appellate court explained:

Under Texas law, a vehicle “may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” Tex. Transp. Code § 545.363(a). “Slow driving, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded.” Tex. Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.).

Noting that the only evidence at trial on this issue was the police officer’s report which contains a conclusory statement that appellant was “impeding traffic,” but no articulable facts (other than the speed of his vehicle), the court held that the trial court erred in denying appellant’s motion to suppress.

The dissent believed that there were enough facts in the record to support the stop, and would have upheld the trial court’s ruling.

Analysis: While traveling below the speed limit may indeed be enough to get you pulled over, the officer must indicate, either in his report or on the stand at trial, what specific articulable facts led to the reasonable suspicion that you were “impeding traffic” such that his stop was justified. Short of that, it is an unreasonable stop under that law.

The District and County Attorney’s Association was not too pleased with this opinion. Here is its analysis:

This is the kind of decision that drives me crazy. The officer testified that the defendant was “impeding traffic” based upon his slower speed. The trial court found and ruled in his favor. Should not the trial court’s ruling be upheld? Unfortunately, this holding is line with a similar decision of the Court of Criminal Appeals in which the court held that the State failed to prove that a defendant committed a traffic violation of following too closely because all that the officer testified was that the defendant was following too closely. I suppose that when an officer testifies that the defendant was “impeding traffic,” you should then ask the officer, “In what observable way was the defendant impeding traffic?” Were cars having to constantly go around him? Were they honking? Still, a trial court’s ruling should be upheld if it is supported by the record. Maybe the Court of Criminal Appeals will review this decision, especially since there is a dissenting opinion.

Limits of the 4th Amendment in an iPhone Culture

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person's cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out.

U.S. v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

Bringing a Dog to Cat Fight, Makes it a Dog Fight

Gerardo Lujan was convicted of possession of cocaine after the El Paso police discovered cocaine hidden in the passenger side of his vehicle. Lujan had been stopped at a police checkpoint that was set up to stop every vehicle on both sides of the road to check for driver’s licenses and insurance. Curiously, the officers also had with them a drug-sniffing dog to detect and alert if any of the detained persons possessed drugs or had drugs in their vehicle.

Following Lujan’s conviction, the 8th District Court of Appeals (El Paso) reversed the conviction, holding that the “license and insurance checkpoint” was actually a subterfuge for general criminal enforcement. The 8th Court focused on the holding of the U.S. Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), wherein the Court noted that it has “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

The State appealed the 8th Court’s reversal to the Court of Criminal Appeals. The CCA agreed with the legal standard articulated by the 8th Court, but disagreed in its analysis. Originally prepared by Judge Holcomb before his retirement, the opinion states:

If the primary purpose of the checkpoint is lawful – a license check as opposed to general law enforcement – police can act on other information that arises at the stop. The checkpoint’s primary purpose of license and insurance verification does not prohibit the police from considering other unrelated offenses that they discover during the stop.

The CCA went on to hold that the checkpoint was not unreasonable, despite the presence of a drug-sniffing dog, the fact that the officers conducting the checkpoint were part of the drug-interdiction team, and the fact that the checkpoint was set up on a stretch of road known for drug smuggling.

Disagreeing with the CCA’s conclusion regarding the lawfulness of the checkpoint, Judge Johnson concurred “because [she] thinks that the drugs would have been discovered without the dog’s alert.” She point out, however, that:

if the checkpoint were truly for only licenses and insurance, the dog would be a valuable resource wasted and better used at a location where its specialized skills were in demand. I agree with the court of appeals that the checkpoint was a subterfuge for general criminal enforcement.

Judge Meyers dissented, stating that bringing a drug-sniffing dog to a license and insurance checkpoint

was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based on the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was the ‘uncover evidence of ordinary criminal wrongdoing,’ in contravention of the Fourth Amendment.

In this case, it appears the Fourth Amendment was trumped by the doctrine of “the ends justify the means.”

Playing Catch-Up

While most of my recent focus has been on Texas Court of Criminal Appeals opinions, I have not been completely neglecting the various Courts of Appeals.  Below are some of the recent cases that were designated for publication by 1^st, 4^th, and 14^th District Courts of Appeals.   

Mims v. State, 1^st District Court of Appeals (Houston), 14 October 2010:

Appellant was convicted of first-degree arson and, after the court found that he used a deadly weapon (Fire), he was sentenced to 50 years in prison.  Appellant challenged the deadly weapon finding, arguing that fire cannot be a deadly weapon because it is not a tangible object and because it is one of the elements of the charged offense.  The Court held that

[A]lthough fire is not a physical object in the same sense as a gun or a knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion-namely, light, flame, and heat.  [F]ire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court also held that the same conduct that supports an element of an offense can also serve to support a deadly weapon finding.  Having rejected both of Appellant’s arguments, the Court affirmed the conviction.

Escamilla v. State, 4^th District Court of Appeals (San Antonio), 13 October 2010:

The Court held that the child victim (3 years and 9 months old) was competent to testify regarding sexual abuse by her father.  The Court also held that the trial court did not abuse its discretion by admitting testimony of the Sexual Assault Nurse Examiner (SANE) regarding methods of determining anal sexual assault.  Justice Hilbig concurred in the result, but dissented regarding the admissibility of the scientific evidence provided by the SANE.

Pham v. State, 14^th District Court of Appeals (Houston), 14 October 2010:

The Court held that appellant had no objective expectation of privacy in a bag of ecstasy pills that he delivered to an accomplice for eventual delivery to a third party.  As such, appellant had no standing to challenge the seizure of the drugs from the accomplice or the later admission in court. 

How Did That Get There?

U.S. v. Gonzalez-Rodriguez - the 5th Circuit (Federal) took a look at what to do when drugs are hidden in a compartment of an indivudal's vehicle.

The Court explained that generally, a jury may infer that a defendant has knowledge of drugs in a vehicle when the defendant exercises control over the vehicle. However, when drugs are hidden in a secret compartment, guilty knowledge may not be inferred solely from the defendant’s control of the vehicle because there is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise. In secret compartment cases, this circuit requires additional circumstantial evidence that is suspicious in nature and demonstrates guilty knowledge.

In this case there was sufficient suspicious circumstantial evidence to support the defendant’s conviction. First, a packing house manager testified that it would have been almost impossible for the methamphetamine to be loaded into the defendant’s trailer without detection at the warehouse where the load originated. Second, a witness testified that it would have been extremely difficult to unload the drugs from the trailer at the destination warehouse without detection. Third, there was a suspicious gap in time, from the time the defendant left the original warehouse, until the time he arrived at the Falfurrias immigration checkpoint where the Border Patrol Agents discovered the drugs. Fourth, the defendant had a key to the lock on the trailer and was able to open the trailer at the checkpoint. Finally, the 312.5 pound of methamphetamine that was seized was worth between ten and forty million dollars. A jury could reasonably infer that the defendant would not have been entrusted with such a large amount and high value of methamphetamine unless he knew he was part of the drug trafficking scheme.

What's That Smell?

The 11th District Court of Appeals (Eastland) issued an opinion earlier this month affirming the use of open air sniff searches by canines. In Johnson v. State, the defendant Michael Johnson was convicted of possession of a controlled substance and sentenced to two years in a state jail facility and a $3000 fine.

Johnson was stopped for running a stop sign. A back-up officer arrived on scene with “drug-detection dog.” Without any suspicion that Johnson possessed any drugs, the officer conducted an open-air search around the exterior of the vehicle and the dog alerted on the driver’s side door of the vehicle. Based on the hit, the officer searched the vehicle and found a crack rock, spoon with crack residue and an open container of an alcoholic beverage.

In regard to the lawfulness of the drug-detection dog search, the court relied heavily on Illinois v. Caballes, 543 U.S. 405 (2005). In Caballes, the Supreme Court held that, “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

So, what’s the take-away? A canine sniff search of the exterior open air of a vehicle does not violate the Fourth Amendment or the Texas Constitution for that matter.

Practice Point: It can be argued that the use of a drug-detection dog involves specialized knowledge requiring the testimony of an expert. If you are going to use this argument make sure and request the notice for expert testimony at a pre-trial hearing and, if necessary, request a separate hearing on expert testimony (A rule 702 hearing). Also remember, the Texas Code of Criminal Procedure requires the State give notice of all expert witnesses twenty days prior to trial.

Cutting Out the Middle Man - Manufacture and Possession Combined

Pursuant to a State's petition for discretionary review of the holding of the 7th District Court of Appeals (Amarillo) in Weinn v. State, the Texas Court of Criminal Appeals was presented the following issues:

1. Can a defendant be convicted and punished for both Manufacture and the subsequent Possession with Intent to Deliver of the same quantity of controlled substances? and
2. Are the offenses of Manufacturing a Controlled Substance and Possession with Intent to Deliver a Controlled Substance the same for double jeopardy purposes, even though the separate offenses are meant to punish separate dangers?

In a shocking 6-3 decision, the CCA held:

the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense.  Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy.

Presiding Judge Keller and Judge Keasler filed dissenting opinions and were joined by Judge Hervey.  Presiding Judge Keller wrote:

the big problem with the [majority's holding] is that it means that a person who manufactures a
controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.

Perhaps Judge Keller failed to read the entire majority opinion, which clearly explained on the final page that

our holding [does] not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment.

This appears to be a well-reasoned holding by the CCA.  If you really think about it, a person that manufactures drugs is obviously going to, at the same time, possess those drugs, and most likely will also have the intent to sell the drugs.  So long as the State is free to charge to subsequent delivery as a separate and distinct offense, I don't really see that the State loses anything (other than a stacked charge sheet) from this holding.  It should actually make the entire process simpler, as the State will be able to charge one or the other (manufacture or possession with intent to deliver), but not both.

The Links Test for Narcotics Possession (a.k.a. Roommate Convictions)

What can happen if your rommate, be it husband, wife, boyfriend, girlfriend, son, daughter, or simply acquaintance, possesses or deals drugs from your jointly shared residence?  Can you be convicted even if you have nothing to do with it?  You bet your glass pipe you can!

A couple of cases from the 1st and 14th District Courts of  Appeals (Houston) were published last week regarding the Links Test, defining what factors a trial court considers to determine whether there is enough evidence to "link" you to the narcotics possession/distribution.  Links (weblinks, that is) to the cases are below.  Briefly, here's what the Courts explained:

When...the accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must link the accused to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it.  The evidence must demonstrate that the link between the accused and the contraband generates a reasonable inference that the accused knew of the contraband‘s existence and exercised control over it.  In other words, the State must establish that the accused‘s connection with the narcotics was more than just fortuitous.  The Texas Court of Criminal Appeals has explained that the purpose of the links rule is to protect the innocent bystander from conviction based solely upon [her] fortuitous proximity to someone else‘s [narcotics].  The links rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.

Texas courts have identified many non-exhaustive factors that may demonstrate a link to contraband.  The factors include whether the narcotics were (1) in plain view; (2) conveniently accessible to the accused; (3) in a place owned, rented, possessed or controlled by the accused; (4) in a car driven by the accused; (5) in close proximity to the accused; or (6) found in an enclosed space; and whether (7) the odor of narcotics was present; (8) drug paraphernalia was in view of or found on the accused; (9) the accused was present; (10) the accused‘s conduct indicated a consciousness of guilt (e.g., furtive gestures, flight, conflicting statements); (11) the accused had a special relationship to the drug; (12) the accused possessed other contraband or narcotics when arrested; (13) the accused was under the influence of narcotics when arrested; (14) the accused made affirmative statements connecting her to the contraband; and (15) the accused was found with a large amount of cash.  These factors constitute a shorthand way of expressing what must be proven to establish that [narcotics] were possessed knowingly.  The number of linking factors present is not as important as the logical force‖ they create to prove that an offense was committed.  The absence of various links does not constitute evidence of innocence to be weighed against the links present (citations omitted).

In both of the published cases below, the links test worked to the advantage of the State despite several weak links in the chain.  I guess in Texas a narcotics conviction is as strong as its strongest link.

Satchell v. State, 1st Dist. - Houston, June 10, 2010.
Roberts v. State, 14th Dist. - Houston, June 10, 2010.

An Alternative Disposition for Drug Addicts

Our prosecutor contributors have been busy lately, but one of them took a break to offer an intriguing outlook on cases involving bonafide drug addicts.  Here you go.

How often do you handle felony cases where drugs are clearly the root of the crime committed? I’m not just referencing the clear ones like possession or possession with intent to deliver. I’m also talking about the theft, burglary, or credit card abuse cases where you have a client who is stealing to feed their drug addictions. These are the clients who probably have a track record a mile long or have picked up 3 or 4 cases within just a few months.

These folks may come across as the ones who just want to do their time and get back to their addiction. They’ve maybe had defense attorneys before you who have gotten them the best jail or pen time available. They know the game and expect the same from you. Or maybe not?

Maybe you have somebody who has reached that breaking point and wants out of the drug world. Whatever the case, when you’re handling drug-related cases with an addict for a client consider this. They don’t have to go to the pen or state jail or even spend a couple of months in the county. Instead, the state has created programs to address the needs of these types of folks.



Rehab. That’s what it is. Plain and simple. Most jurisdictions have county-ran programs where offenders can go to fight their addictions. Some are lock-down programs while others allow participants to maintain full time jobs during the day. (Check with your local probation office on what types of program your jurisdiction offers) TDCJ offers their Substance Abuse Felony Punishment (SAFP) program which is a bonafide lock-down facility. There are programs offered through your local MHMR that usually allow for outpatient treatment. And never forget about private facilities for those clients who can afford it.

Whatever type of program is needed for your specific client, your role as counselor may necessitate this conversation with her. For example, she has been addicted to crack-cocaine for the past three years. She’s been to the state jail and pen and is currently actively incarcerated for her newest state jail theft case. Her first comment to you is? That’s right. Get me the shortest sentence so I can get out of here. Or maybe she possesses the more “I don’t give two rips” attitude. What if you sit her down and explain her options. Explain the availability of these programs to help address her problem. She may very well be responsive. You may need to be the one who encourages that initial step in the direction of recovery.

As for the prosecutor, every case is different. But in many situations, when you have a client who is willing to address his drug problem and agree to a rehabilitative program, the prosecutor is going to have a hard time saying no. It’s not very often the prosecution is approached with rehab. More often than not, it’s the prosecutor who sees the need and has to make the proposal. The defense attorney is in a much better place to make that suggestion, especially when considering how your client will receive it. “The prosecutor is saying you have to do this.” – probably won’t work. “I, as your attorney, think this is something you really need to consider.” – is much more appealing. Just something to think about next time you deal with a client who is an addict.

Specialty Courts - An Alternative Route to Justice in Texas

It has been a few weeks since we've heard from one of our prosecutor contributors.  I know their caseload keeps them quite busy and I appreciate all of their contributions.  Here's an overview of Specialty Courts in Texas by one of our prosecutors. 

Specialty Courts - Does your jurisdiction have them? As populations grow, so do their crime rates. One of the hottest trends to spread across the state are specialty courts. These “courts” are used to handle certain types of cases and relieve the caseload of district and county courts. I placed that term in quotes, because these aren’t the typical courts we think of. Yes, there are judges, prosecutors, and defense attorneys involved, but the normal procedural rigor does not exist. Rather, it is a much more practical, common-sense method, designed to dispose of cases efficiently.

The four common types of specialty courts geared toward criminal law are: Drug Court, DWI Court, Re-entry Court, and Mental Health Court. Depending on your jurisdiction, the operating procedures and names of these courts will vary. I will be preface by telling you to contact your local courts administration to find whether these types of courts exist in your jurisdiction and what the rules are for each.  What follows is a brief overview of the four courts mentioned above.

Primarily, with all specialty courts, there will be a panel consisting of a judge, a prosecutor, a defense attorney, probation officers and other various actors like MHMR representatives, CRTC or SAFP representatives and maybe even community leaders who volunteer their time to allow an avenue of resources for the court it wouldn’t have otherwise. The latter can provide information on local employment and housing for the participants.

This panel convenes before every court meeting and conducts a round-table discussion of the participants. The files of each participant are maintained by their case worker (who will usually be their probation officer) and at this briefing they provide details on the status of the participant like their employment situation, latest urinalysis results, or progress in counseling. The group will discuss each participant individually and make suggestions as to how to best handle their current situation. Sometimes, the conclusion might be that the participant needs to be praised for his efforts. Other times, the participant may need to be sanctioned for violations. After the briefing, the court-meeting is held where the participants are each addressed by the judge. The judge will speak briefly with the participant. Then, each defendant will be encouraged, either through discipline or a pat on the back.

The judge, at first glance, would seem to have the most important role because he is the one who presides over the process. He is the one who has the ability to sanction participants for violations of the rules of the court. Primarily, sanctions are handled civilly through contempt of court. Don’t get overly confused by this part. Participants who enter these courts must abide by the rules and terms given them by the court. If he fails to do so, the judge has the ability to sanction the participant to jail time through contempt of court.

The case worker’s role is equally as important. The panel depends on her to provide the information needed to determine what steps need to be taken to ensure the best outcome for the participant. Their relationship with the participant is obviously vital in maintaining the participant’s motivation.

The defense attorney participates by providing any collateral legal assistance needed by the participant. He does not represent the participants in their actual cases, but can help in guiding the participant in various legal situations like obtaining a driver’s license or valid ID card. He also serves as a liaison to the defense bar when they have questions about the court and its processes.

Ultimately, however, the prosecutor has the final say in whether the state will pursue a motion to revoke or filing the case (this depends on the court and its structure – see more on this later on.) The panel may feel one way, but the prosecutor still maintains her ability to do what she feels is in the best interest of the state. Most prosecutors assigned to these courts do so because they believe it works. Thus, most prosecutors will approach these courts with a “team” mentality and facilitate a cooperative effort by the panel.

The goal with these courts is to find ways to rehabilitate offenders who have the potential of being productive citizens in our communities. Rather than taking a hard-line approach to handling the rise in criminal caseloads, this effort is being pushed because it provides results-based successes. Not just keeping somebody out of trouble for a few months, but actually altering their behaviors to conform with acceptable societal standards for the rest of their lives.

As these specialty courts continue to grow, so will the types used to address different areas of criminal law. As of now, I’m familiar with the following four and will discuss each briefly.

Drug Court:

Primarily deals with drug users who haven’t yet established a criminal record. These are your first-time felony offenders and their cases very from Possession < 1 gram cases to Credit Card abuse cases. These are the folks who obviously have a drug problem. Depending on your jurisdiction (and again, please contact your Courts Administration office) this court will either put offenders in Drug Court as a term and condition of their probation (formal or deferred) or the prosecution will allow the person to participate in the program pre-filing (if the pre-filing method is used, after the offender completes the program, his case is dismissed.)

DWI Court:

This court handles defendants whose DWI occurrences (note more than one) do not rise to the felony level (DWI 3rd or more.) DWI Court, for the most part, sees those offenders who have more than one DWI pending or are on probation for DWI or DWI – 2nd and have failed to comply with the terms and conditions of their probations. Examples would include someone who has been arrested for multiple DWI’s during a short period of time or someone who is on probation and has picked up a new DWI or failed to abstain from alcohol use. The goal here is to rehabilitate these individuals before they reach the felony level. In exchange for not having to go the county jail for a lengthy period of time, these folks participate in this rigorous, lengthy specialty court where they receive more attention than they would than just being on probation.

Re-entry Court:

This court deals with drug and alcohol users who have agreed (either as a term and condition of their probation or as the result of a probation modification) to enter either a county rehabilitation program or SAFP (TDCJ.) Results have shown the probability of relapse is high upon their “re-entry” into society. This court’s purpose is to provide further structure to their lives so that relapse is avoided. The court increases the success rate of these individuals substantially by keeping a much closer eye on their progress. Instead of just having to report to their probation officer, each individual is carefully scrutinized by the panel and their progress or decline is continuously monitored. The goal is to ensure that the rehabilitation “sticks” (for lack of a better term) so that the participant doesn’t pick up further cases or relapse back into their addiction.

Mental Health Court:

This is probably the youngest of specialty courts and, for the most part, is still being established. This court deals with those individuals who have MHMR issues that affect their competency. This court allows criminal courts a way of keeping track of those cases where the defendant is being restored to competency or is in the process of having their competency reviewed. Instead of these cases falling into oblivion, the purpose is to bring them all together where they can be maintained with the same goal of being able to provide an effective resolution to each. Because these cases must be handled differently, this court provides that alternative method.

*Keep in mind, this court is obviously handled differently than the other three courts. Much of what is discussed here, is not applicable to Mental Health Courts. Again, contact your local courts administration for rules and guidelines.

The duration of these courts can vary. Some may last 12 to 24 months. Probations are often extended so that the individual can graduate from the program. That’s right, graduate. As the individual progresses through these programs they “phase” up. After they have completed all of their phases, they graduate. The idea is that upon graduation, these participants return to society changed. Changed so that their behaviors are modified and their ability to become productive members of society is stabilized.

As I’ve mentioned numerous times, please contact your local courts administration office to see whether these courts exist in your jurisdiction and what the rules are for each. Keep in mind, these courts are administered by each local jurisdiction. Therefore, there will be numerous variations from each jurisdiction. I hope I’ve provided enough information to spark your interest. I am by no means the authority on the specialty courts. There are numerous websites you can check out for further information. I’ve included a couple below. Remember, you may have a client who would benefit from these courts. Check into it. If your jurisdiction doesn’t have them, don’t be afraid to contact your courts administration office and ask why not? This may be a good time for the argument “everybody else is doing it!”

http://www.tadcp.com/

http://www.reentrycourtsolutions.com/