The Law Office of Joseph Moreno

Federal and State Criminal Defense


Francisco Duran was convicted by a jury of 1 count of Burglary of a Habitation and 1 count of Aggravated Assault with a Deadly Weapon.  After the jury's decision but before sentencing, the State of Texas abandoned the Aggravated Assault with a Deadly Weapon count and proceeded to sentencing only on the conviction for Burglary of a Habitation.  Mr. Duran was sentenced to 25 years in a Texas Department of Criminal Justice Facilty.  After his sentence was pronounced, the State moved to amend the judgment of conviction to include a Deadly Weapon finding, over the defendant's objection.

On appeal, the 13th Court of Appeals upheld the deadly weapon finding.  Mr. Duran filed a petition for discretionary review and argued that the court of appeals erred when it upheld the conviction on the Aggravated Assault charge even though the State abandoned that charge prior to sentencing and upheld the trial court's modification to the judgment to include a deadly weapon finding.  

The Texas Court of Criminal Appeals agreed with Mr. Duran and reversed the court of appeals' decision.  The Texas Court of Criminal Appeals held that because the State unequivocally abandoned the Aggravated Assault, in the middle of trial, after jeopardy had attached,the court of appeals should have vacated the Aggravated Assault charge.  Additionally, the Texas Court of Criminal Appeals found that because the indictment, in Count 1, did not allege use of a deadly weapon, modification of the judgment to include a deadly weapon finding was improper.

The Texas Court of Criminal Appeals' decision in this case was important to Mr. Duran because an inmate serving a sentence for an offense which is considered a 3g offense under section 3(g)(a)(2) of Article 42.12 of the Texas Code of Criminal Procedure must serve a longer period of his or her sentence before they may be considered for parole. Although the sentence of 25 years stands, Mr. Duran will not be required to serve as long a period of time before he is considered parole eligible.  

For case references please see PD-0429-15.

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Sometimes It's the little things

Posted on September 26, 2017 at 4:55 PM
One of the things I learned early on about the practice of criminal defense is that you have to know your case better than anyone else in the courtroom. I learned that it's not enough just to read a police report and talk to your client about what happened. You have to visit the scene of the offense. Sometimes it seems like this step is unnecessary or a waste of time. It's easy to doubt whether there really is anything to learn from the scene of a DWI by going to the site of arrest. Well, there's a lot to be learned.

In order for the police to stop you to begin with, they have to have reasonable suspicion that you have committed a violation of law or are in the process of committing a violation of law. Often, the initial reason for the stop is a minor traffic infraction such as failure to stop at a stop sign, or speeding. One example of the importance of visiting the scene is a case where my client was charged with unlawful possession of an illegal knife. Police said they stopped my client for failure to stop at a stop sign. After the stop, my client was asked to exit the vehicle and police executed a warrantless search. They found a kitchen knife under the passenger seat. In preparation of the case I decided to visit the scene of the offense where my client had been stopped. As it turns out, there was no stop sign at the location of the stop. My client was illegally stopped and searched. Upon presentation of the facts, and the pictures I had taken of the scene, to the prosecutor, the case was dismissed.

On another occasion, police listed the reason for stopping my client as seen speeding on the highway in a northern direction while the officer travelled the opposite direction. I decided to see for myself whether there was a listed speed limit sign on the highway where the officer stopped my client. It turns out, I learned more than that, I learned that with the wall that divides the highway, it's impossible to see traffic traveling in the opposite direction. I managed to get the prosecuting attorney to take a ride with me to see for himself what I had learned through my "crime scene" investigation and he agreed with me. Even better, he dismissed the case because he knew that the case would not hold up against a motion to suppress evidence.

Those are just two examples of how it pays off to pay attention to the little details of a case. Often the winning ingredient lies in "the little things" that you do to prepare. Types of cases that I have had dismissed because of "crime scene" investigation include: Arson (Revealed burn marks were from prior unreported incident and no emergency vehicle was called out to the scene), DWI (Revealed view of alleged speeding was impossible), Sexual Assault (Revealed alleged "offender" was harassed, threatened, and extorted by accuser).