McAllen, Texas Criminal Defense, Divorce and DWI Lawyer Johnathan Ball

March 19, 2010

Texas Jury Charges and Instructions

Filed under: McAllen Criminal Defense,Texas Criminal Defense — Tags: , , , , , , , , , , , , — Johnathan Ball @ 8:49 am

JURY CHARGES AND INSTRUCTIONS:
A GENERAL OVERVIEW

Presented By Johnathan Ball

HCBA CRIMINAL LAW CONFERENCE 2010:
Lawyers as Warriors

Presented by
The Hidalgo County Bar Association

Sponsored by
Foster Quan, LLP

Friday, March 5, 2010
Embassy Suites Hotel * 1800 South 2nd Street * McAllen

JURY CHARGES AND INSTRUCTIONS

The volume of case law available to research on jury charges is daunting. Putting together a comprehensive paper on jury charge and jury instruction case law would be a six month undertaking. Even then you’d have to leave out some really good case law. Because this body of case law is so extensive the purpose of this paper is to give you a brief overview of the jury charge and relevant case law. My hope is to give you a good starting point to begin any research you need to do prior to submitting your charge to the jury.

First things first: draft your jury charge before the start of trial. Start by reading the indictment. Figure out what has been pled against your client. Look at the offense as defined in the penal code. Then put together the charge. The charge will act as a road map for you. It will tell you where the prosecution has to go to get their proof. And it will hopefully show you where to find your reasonable doubt.
Also, try to anticipate any midtrial limiting instructions you may need to request. Think about any 404b issues that may get presented to the jury and be prepared to requested a limiting instruction on that issue.

Texas Code of Criminal Procedure Article 36.14-19

The starting point for any jury charge is Article 36.14 of the Code of Criminal Procedure (CCP) which states that the court’s charge should “distinctly set … forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury”.

No Piece of Evidence Can be Singled Out

Failure to Videotape a DWI suspect
A jury charge cannot comment on any part of the evidence, regardless of that what evidence was. In Drewett v. State, 704 S.W.2d 43 (Tex.Crim.App.,1986) involved a DWI arrest in Harris County. The trial Court instructed the jury as follows:
“You are instructed that under the laws of Texas, a county with a population of 25,000 or more is required to provide electronic devices capable of visually recording a person immediately after his arrest for the offense of driving while intoxicated. Evidence has been introduced in this case that such electronic device was not available in Harris County on January 18, 1984, and that therefore the officer failed to visually record the defendant in this case. This is no evidence that the defendant was intoxicated or was not intoxicated. In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor.”

The Court of Criminal Appeals held this was an impermissible comment on the evidence because the charge singled out one particular piece of testimony. Be mindful of any instruction that puts a spotlight on anyone witness or piece of evidence.

A recent case from the Court of appeals dealing with comments on evidence is Bartlett v. State 270 S.W.3d 147 (Tex. Crim. App. 2008). In Bartlett the trial court impermissibly instructed the jury that it could consider the defendant’s failure to take the breath test in its deliberations. This was held to be an impermissible comment on the weight of the evidence by the trial Court. The Court of Appeals wrote:

“By singling out that evidence, the trial court violated Articles 36.14, 38.04, and 38.05 of the Code of Criminal Procedure and committed a jury-charge error…“A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the ‘independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties.’ Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention.”

Commenting on Expert Testimony

In Russell v. State, 749 S.W.2d 77 (Tex.Crim.App.,1988) the defendant was charged with aggravated sexual abuse of a child. The defendant presented a clinical psychologist at trial who testified the Defendant was a pedophiliac and could not conform his conduct with the dictates of society. The court instructed the jury it was not bound by testimony offered by a witness qualified as expert. The court instructed the jury:

“You are instructed that you are not bound by the testimony offered by a witness qualified as an expert. You may give it the weight to which you find it is entitled and may weigh such testimony with all other evidence offered in this case.”

The Court of Criminal Appeals held this was an impermissible singling out of evidence and testimony.
When the Judge Can Single Out Testimony or Evidence in the Charge
Bartlett identified three circumstances when it is appropriate to single out evidence: 1. when the law directs the attachment of a certain amount of weight to evidence, such as accomplice witness testimony, 2. evidence admitted for a limited purpose; when the law has created a statutory presumption; and, 3. when evidence is contingent on the admissibility of certain facts that it is up to the jury to decide. Evidence not in one of these three categories should not be singled out.

Scope of the Charge

Keeping CCP 36.14 in mind, a jury instruction should be crafted by referencing the indictment and the supporting evidence admitted during the trial. Jury instructions should be restricted to the scope of the indictment. Only theories alleged in the pleadings should be given to the jury. See Wilson v. State, 625 S.W.2d 331 (Tex.Crim.App. 1981). The charge should not enlarge the scope of the pleadings. In other words, the indictment controls the scope of the charge and additional theories should not be included in the charge which were not pled or for which there is no supporting evidence. See Id.
Further, in Dowden v. State 537 S.W.2d 5, 7 (Tex. Crim. App. 1976), the jury charge included the robbery and aggravated robbery statutes in their entirety. The charge included portions that were neither pled in the indictment, nor proven at trial. The Court held this practice of blindly reciting an entire statute was wrong. In a stinging retribution of the trial court the Court of Criminal Appeals wrote:

“This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction.”

The Charge Must Apply the Law to This Case

Further, it is not enough to simply recite legal platitudes in the jury charge. The purpose of the charge by a trial court must clearly apply the law to the very facts of the case. It is not simply to recite abstract propositions of law and general principles. See Atunez v. State, 647 S.W.2d 649 (Tex.Criminal App.,1983).

Ask and Ye Shall Receive: Charging on A Defensive Theory

There are numerous defensive instructions that can potentially get submitted to the jury. Entrapment, self-defense, mistake, necessity and defense of third persons are a few of the theories available. When in doubt, ask for the instruction. Remember, if evidence is introduced from any source which raises an issue on a defensive theory, the theory must, upon proper request, be included in the court’s charge. Ojeda v. State, 712 S.W.2d 742, 744 (Tex.Crim.App.1986).
The accused is entitled to an instruction on the defensive theory even if the issue was raised only by the defendant’s testimony alone. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991); Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). And it does not matter the evidence presented is strong, weak, unimpeached, contradicted, or unbelievable. The defendant is entitled to the instruction. Period. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993); Lugo v. State, 667 S.W.2d 144, 146 (Tex.Crim.App.1984). The reason the defendant is entitled to the instruction once it is raised, is because it is not the court’s function to determine the credibility or weight to be given the evidence raising the defensive issue in a jury trial. Gibson v. State, 726 S.W.2d 129, 132-33 (Tex.Crim.App.1987). It is the province of the jury to determine if the evidence is credible and supports the defensive theory. Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978). See also Birch v. State 948 S.W.2d 880 (Tex.App.-San Antonio,1997).
Request the defensive instruction if the issue is raised from any source, regardless of who strong the testimony or evidence may be.

Fifth Amendment and the Defendant’s Failure to Testify Instruction

We have all heard since we were eight years old about the Fifth Amendment which states “No person shall be []shall be compelled in any criminal case to be a witness against himself.”
And jury is not permitted to draw adverse inferences from the fact that the Defendant elected not testify at trial on the merits. The defendant shall have the right to have the jury instructed as such. The right to have the jury instructed not to draw adverse inferences from the election to testify carries over to the punishment phase as well. Conversely, if the defendant does elect to at the punishment phase, the jury should be instructed not draw adverse inferences from defendant’s failure to testify at the guilty/innocence stage of trial. See Beathard v. State, 767 S.W.2d 423 (Tex.Crim.App. 1989); Brown v. State, 617 S.W.2d 234 (Tex.Crim.App. 1981); Estell v. Smith, 451 U.S. 454 (1981).

Note: Some jury charges will state something to the effect of : “You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him (emphasis added).” I don’t like when the charges talk about a Defendant’s failure to testify. Failure suggests to me that the Defendant should have done something but did not.
I prefer to see a charge say “Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him.”

Entitlement to Limiting Instructions During Trian Relating to 404b

Texas Rule of Evidence 105(a) states : When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the Court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of the such request the court’s action shall not be a ground for complaint on appeal.” In other words, when evidence or testimony is admitted, the Defendant is entitled to a limiting instruction on the evidence.

In Rankin v. State , 974 S.W.2d 707 (Tex.Crim. App-1996) the court held:

“Limiting instructions given for the first time during the jury charge thus do not constitute an efficacious application of Rule 105(a) since it allows for the possibility that evidence will be used improperly in clear contravention to the purpose of the rule. Since limiting instructions operate most effectively when given simultaneously with the relevant evidence, it would not do to grant trial courts “discretion” to deliver those instructions, after they had been properly requested, at a less opportune time.”

The point of Rankin is to ask for the limiting instruction immediately. First, it preserves should the Court refuses the instruction. And secondly, it puts the testimony or evidence into context with the jury immediately. “ The purpose of … midtrial limiting instructions is to insure that the jurors realize the proper use of each bit of evidence as it comes in. Where the jurors have been accumulating their impressions of the evidence over the course of the trial, it is impossible for them to go back at the close of the trial and reassess the evidence in light of the limiting instruction, even if they could appreciate which items of evidence the instruction was supposed to apply to. These difficulties are avoided by instructions at the time of introduction of evidence received for a limited purpose. 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Evidence § 5065. See Rankin at 712.

Objecting to the Jury Charge

CCP 36.14 states “[T]he defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection…The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury. Compliance with this article is all that is necessary to preserve, for review, the exceptions and objections present to the charge…”
First, remember to take your time in reading the charge. You are allowed sufficient time read the charge and formulate your objections.
Regarding objections, in Almanza v. State, the court of criminal appeals wrote : “we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is “calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. On the other hand, if no proper objection was made at trial and the accused must claim that the error was “fundamental,” he will obtain a reversal only if the error is so egregious and created such harm that he “has not had a fair and impartial trial”-in short “egregious harm.”
In other words: When in doubt, object. It is better to be safe and preserve the error for review under a lower threshold.
Conclusion
The jury charge is fertile ground to present your defensive theories. But just as importantly, it is your opportunity to limit the charges against your client to their proper scope. Request any instructions you believe you client is entitled. Object when you think the charge includes or does not include something that is relevant. Especially any type of comment in the charge that singles out on particular witness. And request limiting instructions when necessary to keep evidence in its relevant context.

October 11, 2009

Man confesses to killing wife, burying her in yard

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Uncategorized — Tags: , , , , , , , , , , , — Johnathan Ball @ 6:18 pm
Jeremy Roebuck
The Monitor

ALAMO — Nearly six months after he allegedly killed his wife, Jose Perez walked into the San Juan Police Department, flagged down an officer and confessed.

With no investigators on his trail and no evidence pointing in his direction, the construction worker in his early 50s told police Friday that he strangled his wife in May and buried her in the backyard of their home northeast of Alamo, San Juan Police Chief Juan Gonzalez said.

“He committed a heinous act. He committed murder,” the chief said. “I think it was just laying on his conscience.”

Hidalgo County sheriff’s deputies unearthed the badly decomposed body of Agapita Perez, 48, nearly eight hours later, after her husband led them through the crime scene.

In the months leading up to her slaying, Jose Perez had argued with his wife over his suspicion that she was cheating on him with a man in Reynosa, according to the account he gave police.

The couple called sheriff’s deputies to their home on the 8000 block of Jam Square Road four times from February to May to referee disputes between them. But on May 24, their argument turned fatal, Hidalgo County Sheriff Lupe Treviño said.

Not knowing their mother’s fate, the couple’s children asked sheriff’s deputies to check on their parents four days after she died.

Investigators visited the couple’s home but eventually called off their search when one of the couple’s sons said he had talked to his father on the phone and thought he heard his mother’s voice in the background.

“(Jose Perez) told him that they were in Reynosa and working out their problems,” the sheriff said. “There was no reason to believe they were in any danger.”

But by Friday, something had triggered Jose Perez’s guilt.

He first asked one of his sons to take him to the Donna Police Department just before 8 a.m. For some unknown reason, he changed his mind and asked to be driven to San Juan, said Gonzalez, the city’s police chief.

“He didn’t confess to his son,” he said. “He just told him that he had done something really bad and couldn’t live with it anymore.”

Because the house is outside city limits, the sheriff’s office was called in to take over the case.

Deputies spent much of the afternoon milling around the Perez family property waiting for a search warrant to dig up the earth. With Jose Perez by their side, they entered the backyard just before 2 p.m.

One of the man’s sons — looking on from behind crime scene tape — burst through a gate on an adjacent property to catch a glimpse of what his father would reveal, but family members eventually dragged him back behind police lines.

Investigators hope an autopsy of Agapita Perez’s body will corroborate much of her husband’s story. Without it, little evidence exists beyond his confession to convict him of murder, they said.

As of late Friday night, Jose Perez remained in the Hidalgo County Jail pending an arraignment hearing this afternoon where he is expected to be charged with murder.

Should he be convicted, he could face up to life in prison and a fine of up to $10,000.

____

 

Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.

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September 26, 2009

Gang member faces possible death sentence for college grad’s murder

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , — Johnathan Ball @ 12:15 pm
Jeremy Roebuck
The Monitor

EDINBURG — Nearly four years after his daughter’s murder, Sergio Cavazos finally allowed himself to breathe easy knowing her killer would not go free.

He choked back tears minutes after an Hidalgo County jury convicted 26-year-old gang member Mario Quintanilla in the woman’s 2005 slaying.

“I believe in God. I believe in justice,” Cavazos said. “And I believe that Larissa is looking down on us right now.”

Jurors took more than seven hours Thursday to find Quintanilla guilty of capital murder, setting off a second phase of the trial in which they will decide today whether or not to sentence him to death.

Their decision comes after an eight-day trial in which two of Quintanilla’s fellow members of the Hermanos Pistoleros Latinos gang described a detailed jailhouse confession of how he killed 23-year-old Larissa Cavazos.

Prosecutors allege Quintanilla and several other men broke into the woman’s Edinburg apartment during the early morning hours of Dec. 21, 2005, believing it to be a cocaine stash house. When they were unable to find any drugs, they beat her, shot her and left her to die.

An aspiring speech pathologist, the woman had graduated from the University of Texas-Pan American only days before her death and had a job interview in Brownsville scheduled for that morning.

While she had no known association to drugs, investigators believe another gang member had taken Quintanilla to her apartment days before the botched home invasion to purchase cocaine from a drug dealer attending a party there.

It took Edinburg police more than a year to link the slaying back to Quintanilla and his accomplices, but not before they investigated Larissa Cavazos’ boyfriend for the death.

Eventually, officers traced a cell phone taken from her apartment to a home Quintanilla and his accomplices frequented in McAllen. And once they started looking into his background, they uncovered a network of potential gang witnesses.

Two gang members told jurors this week that after Quintanilla had been charged with the murder, he described the woman’s death in vivid detail while confined in the Hidalgo County Jail. Their testimony corroborated much of the evidence police found at the crime scene, said Cregg Thompson, an Hidalgo County Assistant District Attorney.

“In order to catch bigger criminals, sometimes you have to go through little criminals,” he said.

But Quintanilla’s defense team questioned the trustworthiness of those gang members. Both men were serving sentences of their own for unrelated crimes and stood to gain by helping police solve the murder case, attorney Sergio Valdez said.

“From the moment (the state) got up there and made their opening statements, they were selling fear,” he said. “The evidence they presented doesn’t support these lying convicts.”

Prosecutors had hoped that testimony from Quintanilla’s accomplice — 33-year-old Alfredo “Fro” Gutierrez Valdez — would clinch a guilty verdict. In February, Valdez abruptly ended his trial for Cavazos’ murder by agreeing to plead guilty and accept a life sentence in exchange for a promise he would testify against his fellow gang member.

But when he was called to the stand last week, he refused to answer questions about his or Quintanilla’s involvement. It remains unclear what action the state could take against him for breaking his plea agreement.

Quintanilla now faces either a life sentence or the death penalty — the only two options available for a capital murder conviction. Jurors are expected to reconvene this morning to hear testimony in the punishment phase of his trial.

But as Sergio Cavazos left the courtroom late Thursday night, the bereaved father looked forward to the chance to finally address his daughter’s killer.

“That man has to pay for what he did to our family,” he said. “And he will pay.”

____

 

Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.

Man convicted of murder tells family he’s willing to die

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , — Johnathan Ball @ 12:13 pm

Man convicted of murder tells family he’s willing to die
Comments 3 | Recommend 0
September 25, 2009 6:56 PM
Jeremy Roebuck
EDINBURG — A gang member convicted of killing a Harlingen woman told her family Friday he was willing to die for the crime if it would help assuage their grief.

While maintaining his innocence in the murder of 23-year-old Larissa Cavazos, Mario Quintanilla said that through punishment he might find redemption for other mistakes he had made.

“I’ve never really done anything good with my life,” the 26-year-old said, biting back tears. “If my being punished — in whatever way — can help, maybe that’s the one good thing I can do.”

Quintanilla’s statements Friday came during the punishment phase of his capital murder trial. On Thursday, an Hidalgo County jury found him guilty of the 2005 slaying.

Throughout the nine-day trial, prosecutors have alleged he burst into Cavazos’ Edinburg apartment on Dec. 21 of that year looking for drugs he believed to be stashed there. When he found nothing, he shot her, beat her and left her to die.

Although Cavazos had no known links to narcotics, investigators believe Quintanilla and another gang member purchased cocaine at her apartment a few days prior to the slaying from a man attending a party there.

One other man has pleaded guilty to helping Quintanilla in the crime. Charges against two other suspects were dropped for lack of evidence.

On Friday, Cavazos’ family members testified she had graduated from the University of Texas-Pan American with a speech pathology degree only days before her death. She had a job interview lined up in Brownsville the morning she was murdered.

With speech wracked by sobs, her mother, Norma, led jurors through a slideshow of family photos from the young woman’s life.

“It scares me. It scares me so much,” she said. “It’s so hard for me to be away from her.”

Quintanilla agreed that Cavazos had a promising life ahead of her.

Testifying against the advice of his family, he blamed his different path on the circumstances of his upbringing as prosecutors challenged him on his long criminal history and affiliation with the Hermanos Pistoleros Latinos prison gang.

While Cavazos lived in an affluent neighborhood with a supportive family, he was brought up in an area where gangs were your family, he said.

“I’ve come to know her through the trial — in a way,” he said. “She didn’t deserve to die. She was going somewhere. She was doing something with her life.

“I only wish I could have done something similar with mine.”

Because he was convicted of capital murder, jurors have two options in deciding Quintanilla’s sentence: life in prison or the death penalty. They are expected to reconvene Monday to begin deliberating his fate.

____

Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.

June 1, 2009

Ex-Donna soccer coach disappears before receiving sexual assault sentence

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , , , , , — Johnathan Ball @ 4:22 pm

Comments 9 | Recommend 3

May 29, 2009 – 6:19 PM
Jeremy Roebuck

EDINBURG — An Hidalgo County jury sentenced Donna High School’s former soccer coach to 13 years in prison Friday for sexually assaulting one of his team members two years ago.

But 33-year-old Edgar Flores did not show up to court to learn his fate.

Visiting Judge Fred Hinojosa issued an arrest warrant Friday afternoon after the ex-teacher failed to appear at the sentencing phase of his trial – a day after jurors convicted him on one count of sexual assault and two counts of having an improper relationship with a student.

“This is not a laughing matter,” said Assistant District Attorney Catarina Alvarado. “This is not a joke. He did not show up today because he was scared.”

But Flores’ attorney – David Higdon – cautioned against assuming that his client had fled to avoid incarceration. His family members, who testified at the trial, said they had last seen him early Friday morning and worried something might have happened to him since then.

“He’s been here every single day,” Higdon said. “We’ve had at least 10 pretrial hearings. This is extremely out of character.”

Prosecutors alleged Flores gave an underage male team member beer, waited for him to pass out and then forced oral sex upon him while the two were spending time together in a car wash parking lot near the intersection of Business 83 and Val Verde Road.

Several witnesses reported seeing Flores and the teen drinking together at the car wash – a popular hangout for team members – on the night of Nov. 17, while others reported seeing them there the next morning.

Flores, who had worked for the district for four years prior to his arrest, took over the varsity soccer team’s top coaching job that season. He also taught Spanish at the high school, but has been suspended since then.

The then 17-year-old, whose name has been withheld because he is the victim of sexual assault, has since graduated from the high school and is currently attending college, Alvarado said.

As of late Friday night, Flores remained at large

May 10, 2009

DWI and the Breath Analyzer Accuracy

Filed under: McAllen Texas Criminal Defense Attorney,McAllen Texas DWI Lawyer — Tags: , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 5:12 pm

Breath Analyzer Accuracy

by David J. Hanson, Ph.D.

About half of all alcohol-related traffic accident fatalities involve drivers with a Blood Alcohol Concentration (BAC) of about .16 or higher. A significant proportion of such high-BAC drivers are hard core drunk drivers; they repeatedly abuse alcohol and drive while intoxicated. Hard core drunk drivers are a major threat to the safety of themselves and others. Breath analyzers are a major tool in convicting such dangerous offenders.

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don’t actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don’t permit data or “readings” from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.

A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Ignition Interlocks

An ignition interlock is a device installed in a vehicle to prevent its use if a driver has been drinking alcohol. It includes a breath testing device into which the driver must blow before starting the engine.

The blood-alcohol concentration (BAC) limit for starting the car is very low, under .025, which is less than 1/3 the legal limit of .08. Therefore drivers are advised by authorities not to eat or smoke before trying to start their vehicles. Otherwise, the device may prevent them from driving.

Repeat DUI offenders to get ignition interlock: blood-alcohol level must be below .025 to start car. TheWGALChannel.com, 10-1-03.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject’s mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

Failure of law enforcement officers to use the devices properly or of administrators to have the machines properly maintained and re-calibrated as required are additional sources of error.

Research indicates that breath tests vary at least 15% from actual blood alcohol concentration. At least 23% (that’s about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC.

One writer has observed that

Breath testing, as currently used, is a very inaccurate method for measuring BAC. Even if the breath testing instrument is working perfectly, physiological variables prevent early reasonable accuracy….Breath testing for alcohol using a single test instrument, should not be used for scientific, medical or legal purposes where accuracy is important. 1

Solutions

There are good ways to virtually eleminate being unfairly conviced of impaired or intoxicated driving. One is to choose not to drink, another is to pace the rate of drinking and follow other tips for maintaining a low BAC, and another is to select a designated driver.

  1. Don’t Drink – If you choose not to drink, you’ll find that it’s not a big deal to decline a drink. Here are some possibilities:
    • No thanks.
    • No thanks; I feel good enough already.
    • Sorry, my analyst won’t let me.
    • I can’t because I get high on grape juice.
    • Not now — I’m testing my willpower.
    • No thanks — I want a clear head to appreciate you fully.
    • Not right now — the party’s wild enough as it is.
    • Sorry, I never drink on Friday (or whatever day it is).
    • Sorry, I promised my parents (spouse, date, etc.) that I wouldn’t.
    • No thanks — I prefer to watch.
    • No thanks — Suzie (or whoever) can’t stand me when I drink.
    • Sorry — I’m taking medication.
    • No thanks, but I’d love to have a Pepsi.
    • Sorry, but I’m the designated driver.
    • You can also “lose” alcohol drinks or order such drinks as water, orange juice, seltzer with a twist of lemon, or any of a number of other beverages that lool like alcohol beverages. Most people don’t really pay much attention to how much others are drinking and you might find that you actually enjoy yourself as much or more without becoming intoxicatecd. There’s no hangover and it’s certainly much safer.
  2. Maintain Low BAC – If you choose to drink but wish to keep your BAC low, here are some tips:
    • Don’t be fooled. The contents of the typical bottle or can of beer, glass of wine, or liquor drink (mixed drink or straight liquor) each contain virtually identical amounts of pure alcohol. When it comes to alcohol, a drink is a drink is a drink and are all the same to a breathalyzer.
    • Know your limit. If you are not sure, experiment at home with your spouse or some other responsible adult. Explain what you are attempting to learn. Most people find that they can consume one drink per hour without any ill effects. Also, experiment with the Drink Wheel, which can be very informative.
    • Eat food while you drink. Food, especially high protein food such as meat, cheese and peanuts, will help slow the absorption of alcohol into your body.
    • Sip your drink.
    • Avoid “chugging” contests or other drinking games.
    • Skip a drink now and then. Having a non-alcohol drink betwen alcoholic ones will help keep your blood alcohol concentration down, as does spacing your alcohol drinks
    • Beware of unfamiliar drinks. Some drinks, such as zombies and other fruit drinks, can be deceiving as the alcohol content is not easily detectable. Therefore, it is difficult to space them properly.
  3. Use or Be a Designated Driver
    • Consider either using or being a designated driver. A designated driver is simply a person who agrees to abstain from alcohol and be responsible for driving others home. The others are free to drink or not as they choose. Many establishments provide free non-alcohol beverages to designated drivers.
    • Designated drivers have probably saved 50,000 lives and spared many more thousands of people from suffering injury from druink driving. 2 Over nine out of 10 Americans who attend social evernts where alcohol is served woould like to see designated drivers used. 3 And the proportion of people either using or being a designated driver has increased dramatically over time. Over 73,000,000 Americans either serve as a designated driver or are driven home by one. 4

A designated driver helps friends and family:

  • Avoid embarrassment,
  • Keep their driver’s licenses,
  • Avoid fines,
  • Stay out of jail, and
  • Prevent needless injury and death. 5

There are a number of advantages to the designated driver concept.

The non-drinker has a legitimate and respected role at a social function where alcohol is served. There is no stigma to abstaining because the designated driver is considered an important member of the group. Being a designated driver can also help legitimate a personal choice not to drink.

The designated driver approach prevents driving under any level of impairment because that person consumes no alcohol. It doesn’t require a driver or passenger to determine if a person is too impaired to drive.

The server or host can offer a positive alternative to drunk driving by encouraging a groups to designate a driver.

The designated driver concept is easy to understand, simple to implement, costs nothing, and is effective. 6

Tips for designated drivers:

  • Plan ahead whenever you are going to socialize wtith alcohol beverages.
  • Decide ahead of time who will not drink any alcohol before or during the party or event.
  • Consider taking turns being the designated driver. Look after your friends and family and they can look after you.
  • Larger groups should have more than one designated driver. 7

Breathalyzers may be inaccurate and often lead to unjust fines, imprisonment, loss of employment, and other serious problems but you needn’t worry if you choose not to drink, to maintain a low BAC, or to use a designated driver.

The High Times of Gerry Goldstein

Filed under: McAllen Texas Criminal Defense Attorney — Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 5:07 pm

The San Antonio lawyer started out defending friends who had been busted for smoking pot. Twenty-five years later, his clients are big-time dope dealers and international cocaine kingpins — and he believes he’s saving the world.

by Mimi Swartz as published in Texas Monthly in April of 1996

The arrest and extradition in January of reputed Mexican drug lord Juan García Abrego created something of a stampede among criminal lawyers. The McAllen office of Abrego’s longtime counselor, Roberto “Bobby Joe” Yzaguirre, was overwhelmed by sales pitches from attorneys all over the country, forceful or flattering letters and faxes explaining why they and they alone should be hired as part of the defense team. Farther north, in Houston, speculation about who would get the job was rampant. Florida dope lawyers pumped their Texas colleagues (“Is it you?” they wanted to know). One lawyer sparked a blaze of gossip after spying the name “Frank Rubino” on the visitors log at the Harris County jail, where Abrego was incarcerated. (“Wasn’t me,” the Miami attorney for dictator—drug smuggler Manuel Noriega said.)

Though Abrego could be quite charming and humorous—“You’d feel very comfortable if he was selling you a car,” said one acquaintance—he would not hold much allure for the average person. After all, the 51-year-old car thief turned kingpin was alleged to have presided over the flow of Colombian cocaine through northern Mexico into the U.S., an operation that reaped $20 billion a year, according to estimates by the Drug Enforcement Agency. He was believed to be armed and dangerous—Abrego’s indictment charged him with authorizing “the murders of numerous individuals,” which were thought to include everyone from business rivals to nosy journalists. There were additional charges of money laundering, drug smuggling, and attempted bribery. There were dark hints of political assassinations, of corruption within the now tainted administration of former president Carlos Salinas de Gortari. There was the dubious distinction, in 1995, of a spot on the FBI’s Ten Most Wanted list. Innocent until proven guilty, okay, but either way, Juan García Abrego looked at best like a pretty bad guy.

Unless, of course, you were a criminal lawyer: then you knew that everyone was entitled to the best defense possible, that if society cannot treat the worst of us with fairness, then what of the rest of us? Maybe the extradition wasn’t legit. Maybe the investigation was fishy—the DEA and the FBI were rumored to have cut deals with more than seventy felons to get their man. There were lots of maybes, except, of course, for one: The Abrego case was the legal equivalent of a gusher. Along with a fee that could hit seven figures, it offered lots of media coverage that doubled as free advertising—in other words, big money up front and down the road in the form of future clients. Juan García Abrego might get life without parole, but the lawyer who represented him couldn’t lose.

Roberto Yzaguirre knew this as well as anyone, of course, but as the only lawyer actually hired by Abrego, he had other concerns. Having represented clients facing drug-related charges in the Valley for more than twenty years, he knew that alone he lacked the resources to go against the federal government in a case of this magnitude. And as a man whose courtliness belied his shrewdness, he had known whom he wanted as partners from the beginning. Tony Canales, a criminal lawyer from Corpus, was an obvious choice: The former U.S. attorney was an old friend who spoke Spanish and knew the ways of the federal government, particularly the federal government in South Texas, better than just about anyone. But Yzaguirre needed someone else to complete his team, someone who was not just a great trial lawyer and a great drug lawyer but a great book lawyer, someone with the intellect to, at a moment’s notice, tip the vagaries of the Constitution in his client’s favor. Someone who, if need be, could work out the negotiations should Abrego decide to cooperate with the government, testifying against an even bigger fish like, say, Salinas himself. Someone who had no problem representing the worst of us and, in fact, saw that as a matter of conscience. When you came right down to it, there really was just one man for the job.

“Goldstein!”

“GOLDstein!!”

“GOLDSTEIN!!!”

THE ATTORNEYS GATHERED IN MIAMI’S fountainebleau hotel for the 1996 midwinter meeting of the National Association of Criminal Defense Lawyers make way for Gerald Goldstein like supplicants in a temple. He has flown in from his San Antonio home this morning and will fly out shortly after his speech. Whipping a cart of visual aids through the hotel’s gilded warrens, he has the air of a man unable or unwilling to downshift. Even without his haste, Goldstein would stand out amid these cheerful conventioneers in their sport shirts and jeans. His salt-and-pepper hair is slicked back, taming curls that twenty years ago approximated an Afro. Long past the age of love beads and bell-bottoms, when he first made a name for himself defending conscientious objectors, Goldstein now wears scholarly tortoiseshell glasses, which complement his impeccably crafted sport coat, which is enhanced by a contrasting orange-and-green tie and the crispest white shirt. At 52 he is trimmer than he was at 42, his hawk-like nose and deepening crow’s-feet telegraphing wisdom, not age. The enfant terrible has become an éminence grise, simultaneously elite and egalitarian. “Hey, brother! Hey, brother! Hey, broth-er!” he says by way of greeting, having his cake and eating it too.

So it has always been with Gerald Goldstein, a man who has made his reputation championing civil rights and his fortune defending dopers, two activities that frequently and fortuitously overlap. He has never shied away from a controversial case—in 1974 Goldstein, no fan of government censorship, defended a San Antonio theater manager’s right to show Deep Throat and, in 1990, rap group 2 Live Crew’s need to be as nasty as they wanted to be; infuriated by overzealous prosecutors, in 1980 he represented one of Texas House Speaker Billy Clayton’s cronies in the kickback scandal known as Brilab. Even so, it is safe to say that drugs have been Goldstein’s life. It was his 1978 appeal that reversed the convictions in what has come to be known as the Piedras Negras Jailbreak Case, in which two Texans stormed the border city’s jail and, Rambo style, freed fourteen American inmates charged with drug offenses. Goldstein was an early and influential supporter of the National Organization for the Reform of Marijuana Laws. He is a counselor and loyal friend to superhead Dr. Hunter S. Thompson, wrote an amicus brief on behalf of Noriega, and has defended on drug charges the sons of such prominent men as BeBe Rebozo and assorted San Antonio swells. The majority of newspaper clippings framed on his office walls have to do with his victorious work in the field of drug-related defense work: a 1979 High Times article that named him one of the top ten dope defenders in America; a 1983 San Antonio Express story headlined POT CONVICTIONS THROWN OUT, POLICE SURVEILLANCE WAS TOO ORWELLIAN; a 1985 Texas Lawyer story titled “U.S. Must Return $10 Million to Drug Smuggler”; a 1989 San Antonio Express-News story headlined FEDERAL CASE DEAD IN RECORD DRUG DEAL. Let the general public scowl—“Rich libertarian is druggie mouthpiece” the late, irascible Express-News columnist Paul Thompson declared in another clipping on the wall—Gerald Goldstein loves his work.

And why shouldn’t he? It has earned him the profound respect of his colleagues, who elected him president of the Texas Criminal Defense Lawyers Association in 1992 and president of the National Association of Criminal Defense Lawyers in 1994 and 1995. He is a sought-after commentator on CNN, a frequent contributor to op-ed pages, the kind of guy whose number is in the Rolodexes of reporters around the nation. If Americans are ambivalent about drugs—outraged by their destructiveness but bitterly divided over what to do about them—then Gerry Goldstein is the embodiment of that ambivalence, and has profited mightily from it.

Nowhere is this ambivalence more apparent than here, in Miami, a place revitalized in part by a TV show about two drug-busting cops in silk suits, a place that now pays the price for its drug culture in the form of murdered tourists. The lawyers gathered here seem immune to this irony, absorbed in the investigative databases on display or in swapping war stories (“I got a reversal in my drug case—that means my client will only have to serve ten years back to back,” says one. Says another: “I just won a two-billion-dollar forfeiture!”) They gossip—“I hear Abrego’s cooperating, so it’ll be an easy case for y’all,” one lawyer says, baiting Goldstein—or they make plans for drinks at the Delano, the hot new hotel owned by Ian Schrager, the man who helped make cocaine a glamour drug in the eighties with his club in Manhattan, Studio 54. The drug culture isn’t just a culture nowadays but an economy, one that is so pervasive that many Americans regard it as unavoidable.

Alleged Gulf Cartel member awaits trial on 2000 drug charges

Filed under: Uncategorized — Tags: , , , , , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 4:56 pm

Alleged Gulf Cartel member awaits trial on 2000 drug charges

September 22, 2008 – 9:29 PM
By Emma Perez-Treviño

 Osiel Cardenas Guillen continues to await his trial on 2000 drug trafficking charges as U.S. Attorneys process his alleged Gulf Cartel associates who were arrested earlier this month.

Cardenas Guillen was indicted in 2000 and was later extradited by Mexico to the U.S. in 2007. He faces charges of drug trafficking and assaulting and threatening to murder a FBI agent and a sheriff’s deputy, public records show.

Several weeks ago, U.S. District Judge Hilda G. Tagle moved Cardenas Guillen’s trial in the Brownsville Division of the U.S. District Court Southern District of Texas to March 2009.

His attorneys, including Roberto Yzaguirre from Yzaguirre & Chapa of McAllen, requested the continuance noting that despite months of review, they have been unable to review all the material. They also claim that some of the material must be translated from English to Spanish or Spanish to English.

Cardenas Guillen’s attorneys also maintain that their review of material with their client is “severely limited” because of his restrictive confinement and the few hours a week that they are allotted with him.

Yzaguirre also represents Roma resident Jose Carlos Hinojosa, 31, aka “Charlie,” aka “Sobrino,” who was named earlier this month along with nine other suspects in a 17-count indictment filed in the McAllen Division of the U.S. District Court Southern District of Texas.

Yzaguirre was not available for comment.

The suspects are charged with drug trafficking and conspiracy to launder money.

Hinojosa along with Raymundo Edgar Gonzalez, 37, and Sergio Ivan Olivarez-Flores, 24, who were named in the indictment, pleaded not guilty Thursday and are being held without bond.

The 10 suspects are among 507 persons, including Cardenas Guillen’s brother Ezequiel Cardenas Guillen, arrested or indicted in a 15-month federal investigation called Project Reckoning led by the Drug Enforcement Administration.

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