Recent Blog Posts in 2010 |
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| September 01, 2010 |
| Game Day Traffic |
| Posted By Herman Martinez |
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| The Houston Astros is coming to a sad end again this year. While attendance is down the afternoon start time creates a headache for me when arriving and leaving the Harris, County, Texas Courthouse. Today, like most other times when there is a day game the parking garage reaches its capacity by 8:30 since it is one of the few covered garages around Minute Maid Park. In fact, the attendant was only allowing those of us that have contracts to enter the garage when I got there. Luckily, I pay for a reserved spot so I do not have to go searching for a parking spot before getting to the courthouse. It seems like all the people that work at Minute Maid Park park in Harris County Parking Garage. Later, when I leave the courthouse traffic is backed up because of all the people that are new to downtown trying to make the game before the first pitch. Frankly, I wish I could have joined them and enjoyed the game instead of fighting traffic to leave. |
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| August 18, 2010 |
| Why are they using that Assault case that was dismissed in Houston against me? |
| Posted By Herman Martinez |
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I hope this does not become a trend in Harris County, Texas, but I have come across two cases this month where someone's family violence assault case that was previously dismissed was used to make their current charge a felony assault. Recent changes in the law allow someone to be charged with a felony if the Government can prove that the assaults occurred within a year of each other.
When I became a criminal defense lawyer in Texas the only way a assault case became a felony was if serious bodily was caused or if someone was threatened with a deadly weapon. In response to the increase in domestic abuse cases the legislature made it a felony if someone assaulted a family member after being previously been convicted of the same offense. Please note that it does not have to be same family member or even that it had to be an actual member of someone's family. In fact, a dating relationship is enough. For instance, I have come across that a person has been charged as a felony for hitting his brother's girlfriend that was currently living with the family. |
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| August 11, 2010 |
| The Houston DWI Vacation |
| Posted By Herman Martinez |
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| I never think of Houston, Texas as a vacation spot like Miami, Orlando, or Los Angeles, but this summer I have seen an increase in people getting arrested for DWI in Houston while vacationing. The trouble with this happening apart from the obvious is that the Harris County, Texas courts do not accommodate someone that lives outside the state. In other words, the person must make all of their court appearances. The first court setting after a DWI arrest in Harris County, Texas is a week later. Most people do not vacation that long and need to return home. Their case will not be transferred to their home state. In fact, they will be required to return to Houston, Texas for every court setting. This becomes an expensive proposition. Also, any license suspensions that occur in Texas will follow them to the state where they reside. Lastly, they may face additional consequences in their state for any DWI conviction that may occur in Texas. |
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| August 09, 2010 |
| The first setting dismissal in Harris County, Texas |
| Posted By Herman Martinez |
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| Today, I was fortunate to defend a case where the police report mirrored what my client said to me in our first interview. I must admit that this is not typical. What happens more often is that the police report is an embellishment of the events and puts my client in the worst possible light. Thus, my client is the one that gets charged with the crime. In the case that I handled today, the charges should not have been presented to the Harris District Attorney's Office and the prosecutor reviewing the case should not have accepted the charges despite the case being presented to them by the police officer. While I was able rectify the mistakes made by the police officer and the prosecutor it came to a lot of expense to my client. The client was fortunate to have a reasonable prosecutor be able to review the police report and make the correct the decision to dismiss the case without further investigation. |
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| August 04, 2010 |
| 27 Years in Prison and No Parole |
| Posted By Herman Martinez |
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| A Harris County man was recently released from prison after spending 27 years in prison for a crime he didn't commit after DNA evidence cleared him of aggravated sexual assault. The case received quite a bit of publicity. This was due to the injustice that the man endured and the length of time he spent he prison.
However, no one in the media reported the fact that the man had spent all that time in prison without receiving parole. There is a misconception in the general public that those convicted of felonies and sent to prison, only serve a small fraction of time and are released. I believe that this leads juries to punish defendants with greater sentences because they mistakingly believe felony convicts will be released early.
Under the parole law at the time of the man's conviction he was required to do one-third of the time and not more than 20 years before he was eligible for parole. The man was sentenced to 75 years in prison. Under that law after 20 years he would have been eligible to be released under parole supervision. Obviously he was not paroled and an additional 7 years passed and still no parole. He was only released after old evidence was tested which proved his innocence.
Under the current parole law he would have to do half of his sentence but not more than 30 years before he was even eligible for parole and his case demonstrates that after 30 years he would likely not parole the first time he is eligible.
The truth is if someone is serving time for a violent or sexual offense he will end up doing the majority of his sentence. |
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| July 27, 2010 |
| Mug shots tell nothing about the accused |
| Posted By Herman Martinez |
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| Since I DVR all my favorite episodes I rarely watch live television and try my best to watch commercials when I do. Today, I was watching live television and heard a news story stating that they will reveal what mug shots tell about the celebrities that were arrested. In my 15 years of being a criminal defense attorney I have not found a mug shot to show anything about a person that is accused of a crime. Most commonly mug shots are showed by the prosecutors in DWI trials. The most they illustrate is that the person is embarrassed, tired and humiliated. The last thing they want to be is smiling for a mug shot. On the other hand, if they are smiling the prosecutor would be able to use that against them by stating that they accused did not care that they were being arrested of that they were so intoxicated that they did not know that they were being taken into custody for drunk driving. |
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| July 23, 2010 |
| Please ask a question |
| Posted By Herman Martinez |
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| One of the most frustrating emails I get is when a person writes a long email, but never asks a question. Today, I received one from avvo.com, an internet site that is intended to help the public with legal issues and finding an attorney. In the past, I have provided information as a criminal defense attorney on that site on various criminal law issues so I still get contacted by people seeking my advice. The person took the time to write the email, but forgot to tell me some pertinent information like the city where the alleged crime occurred, what police agency arrested him, what criminal court was the case assigned to or even if the case is still pending. Most importantly, the email did not contain a question that I could answer, even if I could. If you are considering sending me an email please include the city, state, and county where the arrest occurred. I unable to answer a legal question if it is outside of the State of Texas. Also, please detail the charges against the accused so I can properly discuss the case with you in the future. |
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| July 21, 2010 |
| Prove it or else I do not need to testify |
| Posted By Herman Martinez |
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One of the most difficult legal concepts for anyone outside the criminal justice system is our right not to testify in a criminal case. Most people know this right as pleading the "5th." As a criminal defense lawyer I have a lot of potential jurors tell me during voir dire (when a jury is picked) that they would have to hear from the defendant before finding him/her not guilty of the alleged crime. I can understand their position since we have been taught from our childhood to defend ourselves when accused of something we are accused of doing. Nevertheless, any juror that has this position would be disqualified from sitting in a criminal case. This does not make them a bad person or a bad juror. In fact, they would be qualified to serve as a juror in an non criminal case where a defendant is not afforded the fifth amendment privilege.
If one thinks this through it is clear why a defendant in a criminal case should not have to testify against themselves. The burden of proof is on the State that is bringing the charges against the person. If the State fails to prove to a jury that the person is guilty beyond a reasonable doubt the defendant does not have to do anything because the jury's verdict should be not guilty. Thus, the defendant's testimony is immaterial if after closing their case the State did not meet their burden.
An example of this is the trial of former Illinois Governor, Rob Blagojevich. After campaigning for several months that he would be testifying on his own behalf he decided not to testify after the prosecutors finished their case. This is his right and hopefully the jury does not hold that against him. |
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| July 15, 2010 |
| Harris County, Texas Probation Conditions |
| Posted By Herman Martinez |
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A lot of my clients want to know what the conditions of a potential probation may be so I have decided to provide a list of the common requirements to successfully complete a probation in Houston, Harris County, Texas. Please be advised that this is not a complete list, but only an outline of what is likely expected of a person that goes on probation. Each case, court, and prosecution is unique so there is a likelihood that there may be additional requirements.
The typical probation rules are as follows:
1. Do not commit any new offenses while on probation (typically traffic tickets are excluded unless a person is on a DWI probation and they are not allowed to be driving.
2. Do not drink alcohol or use any drugs that have not been prescribed by a doctor.
3. One must report to their probation officer in person every month as directed.
4. Allow the probation office to visit their home, work, or elsewhere.
5.Work faithfully or show all attempts made to secure employment.
6. Support all dependents.
7. Submit to random urine drug/alcohol analysis.
8. Participate in a community service program.
9. Remain in Harris County, Texas. (permission is needed to leave the county).
10. Pay all court cost and fees. |
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| July 13, 2010 |
| Harris County Criminal Courthouse lines |
| Posted By Herman Martinez |
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After being on vacation for two weeks I always anticipate my first day back at the courthouse to go smoothly despite this never being the case. Sure enough, after turning the corner from the Harris County Parking Garage I can not believe the line that has formed at 8:30 am. Typically, the lines outside the courthouse are long, but the one today was three times longer than any that I have previously witnessed. While I do not have to wait in the line to the courthouse since I have a pass I feel terrible for those that have to wait in a line that is longer than a ride at Walt Disney World to enter a criminal courthouse with the Houston heat and humidity. I still have to squeeze through everyone just to reach the doors of the courthouse. On this day, the elevator banks were calm compared to previous days and I was able to get to court without incident. Unfortunately, I had a client that was caught in the line. I was able to text him when he was not present for docket call and keep his bond for being forfeited.
Something really needs to be done about the lines that form at the courthouse. I am confident that the judges see these lines since they drive past the front of the building when the enormous lines are being formed. I hope they are not forfeiting bonds when someone in stuck in line. A simple suggestion would be to allow people to enter from the back of the building. Currently, only those of us with badges can enter from that side of the building. While this will not cure the problem it may help the flow of people in the morning. |
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| July 09, 2010 |
| Harris County, Texas Judge retiring from the bench on her own terms. |
| Posted By Herman Martinez |
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After more then twenty of year of being a public servant Judge Deborah Stricklin, 180th District Court of Harris County Texas has decided to retire. Earlier in the year she had made it known that she would not be seeking another term to the bench. She is married to Don Stricklin, former Judge of the 337th District Court of Harris County, Texas. She was not playing on leaving the bench so soon, but her timetable was moved up by an unforseen change of circumstance for the better. I wish the Stricklins are enjoyable retirement. It is not common that people leave their chose profession on their terms.
It seems logical that Governor Perry will appoint Marc Brown, who is running for the bench as a republican to the bench. This would give him an advantage over his opponent. Curiously, that would make another set of spouses on the bench. Mr. Brown is married to Susan Brown who presides over the 185th District Court of Harris County, Texas. |
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| July 08, 2010 |
| Houston Police Forbidden To Talk To Criminal Defense Attorneys without Permission |
| Posted By Herman Martinez |
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| The Houston Chronicle has reported a a new Houston Police Department policy forbidding officers from talking to lawyers for defendants without "express permission" from prosecutors. Some lawyers are questioning the legality of the policy. I question the policy from a public relations standpoint. Why would the police want to appear that they are hiding something? If they are doing their job, there should not be anything to hide.
Police officials often talk of community policing and the trust of the public for law enforcement. Without trust the police lose valuable witnesses that may not be willing to come forward. Additionally, the state has a greater likelihood of losing trials when jurors just don't trust or believe police witnesses. I, like many was raised to respect law enforcement. The police should work to foster that trust rather than working to make people wonder what they may be hiding. |
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| July 07, 2010 |
| Lohan Sentenced to Jail |
| Posted By Herman Martinez |
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| Lindsay Lohan was sentenced Tuesday to 90 days in jail for violating terms of probation over a three-year-old drug case. After leaving jail she, Lohan will spend another 90 days at an in-patient rehab facility. According toreports her mother was shocked at what she considered the severity of the sentence. The bottom line in any case, if you are on probation don't put yourself in a position where a judge can take your liberty. |
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| June 28, 2010 |
| Baby For Sale at Walmart |
| Posted By Herman Martinez |
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In a rather disturbing allegation these two were arrested and accused of trying to sell their 6 month old baby outside a Walmart.
They were allegedly seeking $25 for the baby. According to AP reports the couple appeared to be high on methamphetamines. |
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| June 23, 2010 |
| Houston DWI DIVERT drug testing |
| Posted By Herman Martinez |
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More than one of my clients that has entered the DWI DIVERT program in Houston, Harris County, Texas has asked me what type of drugs will they test for when they do get tested. I must admit that I treat this is a loaded question. The truth is that I do not have an exhaustive list of all the drugs that will show up in a person's urine after they are tested. Nevertheless, what I tell my clients after any DWI in Houston is make sure that you have a prescription for any drug that may show up if you are tested for drugs.
In the past, I have had clients adamantly deny using an illegal drug despite the presence of it in their urine test. On a few occasions, the treating physician of the client has been able to explain why this may occur. Even though the doctor may have a valid explanation why this may be the case a judge still required the client to get a hair follicle test. |
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| June 21, 2010 |
| How is a Houston Criminal Lawyer suppose to act in a courtroom? |
| Posted By Herman Martinez |
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I was floored today when a felony judge told me that I was being too aggressive while trying to prevent my client from being to sent to prison. Last time I checked that was my job! In fact, this is the first time in 15 years of being a criminal defense lawyer in Houston that I was told something like this. Most judges understand the dynamics and appreciate a lawyer that is advocating for their client. I was not being offensive or rude to anyone. I understood that my client was wrong for violating his probation, but I was merely pointing out to the judge all the alternatives to prison that were available to him. Luckily, the prosecutor handling the case did not have the same position that the judge did so my client may avoid prison time in the future.
If you need the assistance of a Houston criminal defense lawyer please contact our law firm. |
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| June 08, 2010 |
| Is Houston,Texas ready to go this low for a DWI? |
| Posted By Herman Martinez |
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The United Kingdom is considereing lowering the legal limit for driving while intoxicated (DWI) to .05. That would be less than a pint of beer of beer at dinner. I am sure M.A.D.D is all over this and will even cite to it when it approaches states like Texas when trying to influence them to lowering their own legal limit.
Currently, our State blood alcohol limit is .08. As late as the last decade the legal limit in Texas was .10. I do not see this being lowered again in the near future. I think most reasonable Texans would agree that one or two drinks at dinner should not be illegal. |
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| June 08, 2010 |
| A sweater in Houston during the summer? |
| Posted By Herman Martinez |
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If you happen to visiting the 337th District Court of Harris County, Texas in Harris Criminal Courthouse you may need a sweater despite the typical summer day in Houston being in the 90's. Yesterday, I was in Judge Herb Ritchie's court and it must have been in the 60's. You could feel how cold it was once you open the door entering the vestible. While I was comfortable since I was was wearing my suit, all of the females that work for him were wearing a sweater or hoodie. The defendants that were in court seemed like the crowd in a Packer's game during December. I actually think a lot of the Houston criminal defense lawyers appreciate the cooler temperture entering Judge Ritchie's court after talking to them in court. I think I will make his court my first stop in the morning after walking in the Houston heat.
If you need the help of a Houston Criminal Defense Attorney please contact our law firm. |
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| June 03, 2010 |
| How do I bond my _____ out of jail in Houston, Harris County, Texas? |
| Posted By Herman Martinez |
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| The general public has no idea how to bond someone out of jail. They receive a phone that frantic phone call from a relative, friend, or loved one requesting to be bonded out of jail in the middle of the night. Essentially, a person has three options when bonding out of jail. They may get lucky and be granted a pretrial bond. A pretrial bond allows a person to bond out of jail without having to pay any money. Please keep in mind that typically a pretrial bond is for a low level misdemeanor and given to people that have never been previously arrested. Also, a pretrial bond also takes much longer to process. Next, a person may post a cash bond. I have been told that this is the quickest way to bond someone out of jail. A cash bond is straightforward. A person for the arrested individual goes to 49 San Jacinto in Houston, Texas after the person is booked and pays in cash the amount of bond. For a first time offender , a misdemeanor bond for something like a DWI should be from $500 to $1,500 depending on the charge. A felony bond starts at $2,000 and goes up from there. The cash bond will be returned once the criminal case is concluded provided that the person makes all their court appearances and their bond is never revoked. If the cash is not available a person may use a bonding company to make a bond. Typically, a bonding company charges a fee of 10-20% of the bond amount for their services. Collateral equal to the bond amount is also required by most bonding companies in Houston, Harris County, Texas. Most of these companies are open 24 hours a day. A Houston criminal defense lawyer may not post a bond for a client. |
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| June 01, 2010 |
| Houston Criminal Defense Lawyer Refreshed |
| Posted By Herman Martinez |
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| There is something that sunshine does to my body. The sun invigorates my body. Perhaps, it is my Cuban ancestry? Nothing helps me recharge more then taking a long weekend away from work and soaking up the sun somewhere. That is precisely what I did this past weekend. While during Memorial Day weekend a large number of DWI arrests are made in Houston I thought it was important that I take some time for myself. Since I do not work for a corporation if one of us are not in the office the work does not get done. Most potential clients want to speak with a DWI attorney before they hire them so going on vacation is twice as expensive for me. I have a few trial coming up in August so I hope to take some time off again around the 4th of July holiday. If I do not take care of myself everyone suffers. |
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| May 24, 2010 |
| Lindsay Lohan- How not to act in a Houston Court |
| Posted By Herman Martinez |
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A lot of clients get annoyed when their court case interferes with their working schedule. Most court appearances are scheduled for weekday mornings and take anywhere from one hour to three each time. Also, most criminal court cases take several months to resolve therefore, so can severely impact professional/work obligations.
A perfect example of how to make matters worse for your criminal case is Lindsay Lohan. Ms. Lohan has been her own worse enemy. She has missed court dates, arrived late to court dates she did attend, and she also been rumored to be drinking while on bond. Due to the perceived lack of respect for the court Ms. Lohan will be paying a significantly higher price than she anticipated. Today, she was ordered to be fitted with a SCRAM device, weekly drug testing, daily alcohol classes, and lose out on work opportunities that she had scheduled in Texas.
It is best for a person to understand that while their case is pending there will be some inconveniences, but is best not to have the judge apply extra conditions by not following the court rules since this will in turn make the situation much worse in the long run. |
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| May 21, 2010 |
| Hello...my Houston Federal Friends |
| Posted By Herman Martinez |
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I had to go to the United States Attorney's Office located in Houston, Texas early this week with a client. I forgotten how many former Harris County, Texas prosecutors have gone to work for the United States Attorney's office since I left the District Attorney's office. I came across a half dozen lawyers that I have worked with or against the last ten years in my ten minute wait in the lobby. It seems like there are few roads a Houston prosecutor travels after they leave the office, some, like me become criminal defense lawyers. Others, go to the United States Attorney's office. A few go into civil practice. While there are some that stay at the office that is not the norm. Ultimately, every person has to decide what is best for them in the long run. I can only hope that my colleagues enjoy their career choice as much as I do.
If you need to speak to a Houston Federal Attorney please contact our law firm. |
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| May 20, 2010 |
| How long does it take to bond someone out of jail in Houston, Harris County, Texas? |
| Posted By Herman Martinez |
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Our criminal defense firm regularly gets a phone call from someone that just had a person they know get arrested for a crime asking the above question. As I would do on most subjects if I was not a criminal defense lawyer they turn to the internet for information. Unfortunately, the internet lacks suffiecient information to answer their query. The short answer is that it could take anywhere from 12-48 hours to bond someone out of jail in Houston, Harris County, Texas. The keys seems to be if you are able to make the bond before the person is transferred to the Harris County jail. Most people are arrested and booked in the local city jail. If a bond is made while the person is waiting in this city jail and before they are transferred to the county jail the time waiting in jail is signficantly reduced.
If you need the assistance of a Houston Criminal Defense lawyer please contact our law firm.
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| May 20, 2010 |
| How did Lindsay Lohan avoid jail |
| Posted By Herman Martinez |
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Party girl, Lindsay Lohan is in criminal hot water again. Apparently, she is not doing very well with her probation. Fortunately, she was notified about her arrest warrant while working in France. I would not expect the court to call one of my clients to inform them they are about to get arrested. Perhaps, this is done in California, but it is not done in Harris County, Texas. Once she was made aware of the situation it allowed her family to post a non arrest bond on her behalf, saving her from returning to jail. A non arrest bond allows a person to make a bond without going to jail. If you find that there is a warrant for your arrest contact a bonding company to avoid going to jail. Simply them you wish to make a non arrest bond. I have previously discussed non arrest bonds here.
If you need a Houston criminal lawyer after bonding out of jail please contact our law firm. |
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| May 20, 2010 |
| Dude...do not smoke before court! |
| Posted By Herman Martinez |
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| Today, I was in the elevator with someone that was still reeking from smoking marijuana the night before or the morning of court. Please keep in mind that when using the elevators in the Houston, Harris County Criminal Justice Center you are also sharing it with prosecutors that may inform your court that you may test positive for drugs if they request a urine sample from you. A court may revoke your bond if you test positive for any type of non prescribed drug. Do yourself a favor and do not smoke before court to avoid going back to jail. |
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