The Law Office of Joseph Moreno

Federal and State Criminal Defense

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A calling

Posted on October 25, 2018 at 7:45 PM
I love the practice of criminal defense. I consider it my calling. The question for you is: Do you want to be represented by someone doing a job of criminal defense? Or Do you want to know that your attorney is answering a call every time he steps into the courtroom?

Appeals

Posted on October 18, 2018 at 3:25 PM
Many criminal defense trial lawyers do not handle appellate work. I believe that appellate work goes hand-in-hand with trial work for many reasons. Without any particular order to the importance of these factors I will say that when attorneys are in trial, they are speaking to multiple audiences. The jury needs to hear your case and understand why your client should be found Not Guilty. The judge needs to hear your arguments and understand why any objections made should be resolved in your favor. Just as importantly, every trial proceeding is recorded. The record needs to accurately reflect the precise nature of any objections you make, the legal underpinnings of your objections, and the authority on which you are relying for your objections. Trial attorneys need to be aware that the record is just as important as every other facet of the case. In order to properly make these objections, then, and to properly preserve error for appellate review, if it should become necessary, trial attorneys need to be able to function with an appellate mind frame as well as a trial mind frame. Some attorneys argue that they don't do appellate work because if they try a case and lose, then the defendant may need to make an appellate arguement that the trial attorney was ineffective. The problem with that is that ineffective assistance of counsel claims are rarely successful on direct appeal. The reason for that is that in order to show that their trial counsel was ineffective in his or her representation of a defendant, the appellant needs to show, on the record, that the short comings were in fact "failures and omissions" that fell below the prevailing professional norms and not merely a result of trial strategy. A majority of the time, the record will be devoid of such information. Issues of ineffective assistance of counsel are usually reserved for Post Conviction Writs of Habeas Corpus. Another means of alleging ineffective assistance of counsel is a Motion for New Trial where the defect in representation was immediately apparent to the defendant and raised with new counsel within the time frame for filing a Motion for New Trial. If a hearing is granted, then the attorney can be directly asked about his or her tactics and questions about failures or omissions can be addressed on the record. Again, an important factor to proving ineffective assistance of counsel is an actual record indicating that the failures were not simply part of the attorney's trial strategy. It seems that the benefits of being the trial attorney and the appellate attorney are that as trial counsel, I know what happened at trial; I know what the legal arguments are before I even receive and review the record; and I already know which objections are the ones I need to rely on to continue to fight the good fight.

An impartial Jury

Posted on October 12, 2018 at 1:20 PM
The Sixth Amendment to the United States Constitution provides "the accused" with "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." In today's political climate, that may not be so easy to do. Juries and jury pools are composed of a person's "peers." People who live in the community, for the most part, where the trial is had; where the defendant/accused resides; where the alleged crime took place. People who are affected by the politics put out in the news, on television shows, in the music that is played over the radio, computer, smart phone, or whatever other device is capable of media displays. When he was running for office, President Donald Trump said of Mexico, "When Mexico sends its people, they're not sending their best. They're not sending you. They're not sending you. They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people. Enter the case of Agustina Hernandez Hernandez. Ms. Hernandez was accused of possession of marijuana. The allegation was that she knowingly, and intentionally possessed marijuana" when she stopped her car and let three individuals into the vehicle who were in possession of one bundle of marijuana each. It was late in the evening and the road was a road hardly used by mainstreams of traffic. When officers pulled Ms. Hernandez over, they asked her to lower her window. The officer's claimed at trial that they could smell the marijuana as soon as the windows were rolled down. They then asked for a canine to do an open air sniff to determine whether there were drugs present in the vehicle. After the canine made a positive alert for drugs, officers had everyone exit the vehicle while they searched the vehicle. They then located bundles of a substance they believed to be marijuana. Officers then cut open the bundles and conducted a "field test" of the marijuana. After the field test alerted that the substance was likely marijuana, they sent a sample of the substance to the lab for testing. The lab result showed positive for marijuana. Ms. Hernandez's defense argued that she had been called to the area by a mechanic friend of hers. He asked her to pick up some individuals who were in need of a ride. Ms. Hernandez had previously used her friend's mechanical services and didn't think twice about offering a ride. Her defense continued that when she arrived at the area, she saw the individuals who needed a ride and pulled over. She could not see very well because it was dark out. She did not notice that they were each carrying a bundle. Shortly after they were in the vehicle Ms. Hernandez was signaled by law enforcement's flashing lights that she was being detained. She did not know these individuals and was not aware that they were carrying marijuana. She was in deep trouble before she could even register what was going on. At trial the officers testified that the smell of marijuana was obvious. The packaging was obviously consistent with the manner in which marijuana is packaged when it is crossed over the border, and obviously Ms. Hernandez was in on the crime. However, each officer testified that they were able to recognize the smell of marijuana easily because of the years, experience, and training that they had had with marijuana. That they relied on the canine sniff to verify the presence of marijana, and that they had the marijuana tested just to be sure. All these resources which were not available to Ms. Hernandez on an instant, at that instance. Unfortunately, one of the questions that repeatedly arose from the prosecution to their witnesses was whether Ms. Hernandez was a U.S. Citizen or whether she was a Mexican National. Counsel for Ms. Hernandez promptly objected arguing that whether Ms. Hernandez was in possession of marijuana has nothing to do with whether she is a U.S. Citizen or a Mexican National. No information presented to law enforcement to this point, had anything to do with the citizenship status of any of the individuals involved. The objection was overruled. The questioning continued and the issue was raised with each witness and used in closing by the State. The case is up on appeal at the 13th Court of Appeals. Arguments are set for November 29, 2018. The question is, why bring up the citizenship status of the defendant if it has nothing to do with the case? Does it deprive her of a fair and impartial trial by a jury of her peers? If the State felt that their case aqgainst Ms. Hernandez was strong, why not leave it at the facts surrounding her "intention and knowledge" to be in possession of marijuana? Why convict someone on the hot topic issue of nationality? Either in the Trump era or any other era, for that matter? I'll keep you posted.

SA Scene Magazine

Posted on February 8, 2018 at 6:15 PM
I am happy to announce that my peers have voted me among San Antonio's top DUI/DWI lawyers. The list will be in the March issue of SA Scene Magazine.

1 Attorney for Multiple Defendants

Posted on November 30, 2017 at 11:25 AM
One aspect of representing the best interests of a client involves the negotiation process. Whether you're in Webb County, Bexar County, Hidalgo County, Cameron County, or anywhere else in Texas, one of the things to take into consideration when preparing a person's case is whether that person has a criminal history and how that would affect the current pending case. Some of the things that matter with regards to criminal history are the recency of the criminal history (whether the previous case was dealt with years ago, or whether the person is still currently on probation) and the severity of the previous crime (whether it was a misdemeanor or felony and whether it was a case that resulted in probation or jail time). If the person is still currently on probation, then there are other issues to worry about such as a potential revocation of that probation and the available outcomes the state is willing to negotiate with on this current case. For example, the state may not offer probation to someone who only recently was placed on probation and went out and got arrested for this new violation. When I open up the dialogue with my clients about their prior history, surprisingly often, my clients reveal that their previous history resulted from a case where there were multiple people accused of a crime and someone (often the parent of one of the accused) hired one lawyer to represent all of the accused. This is permissible, particularly where everyone agrees to waive any conflict of interest claims, but I do not recommend it. Each individual accused has the right to an attorney. Each individual accused has the right to an attorney who is concerned about that individual's rights without conflict to another client. Each individual accused has the right to a trial by jury where the state has the Burden of Proof to establish Beyond a Reasonable Doubt that that individual is guilty. You shouldn't be in a situation where you have to draw straws to determine who is going to take the blame. You shouldn't be in a situation where because you were the last one to bond out of jail, you should accept the blame for everyone else because your conviction will result in "time served." A conviction is a conviction and it stays on your record. Finally, you shouldn't be in a position where one of the other defendant's paid the attorney so you should accept responsibility to make it easy on everyone involved. You'll be stuck in the end. Stuck with a conviction. Stuck with probation. Stuck with court costs. Stuck with a criminal history. Don't be stuck with the baggage. Get an attorney who will fight for your rights. (See my blog "Be Careful What You Wish For. . .")

Be Careful What You Wish For. . . You Just Might Get It

Posted on October 19, 2017 at 1:00 AM

     Are you a court appointed lawyer? That's a question I've been asked a number of times as I walked the halls of the Cameron and Bexar County Courthouses. It seems like a simple question but the answer is not so simple. In short, yes, I do court appointed work. But no, I cannot "appoint" myself to represent any individuals. Every county has a system for appointing attorneys to cases depending on the attorney's experience, the level of offense (misdemeanor, State Jail Felony, 3rd degree felony, etc) and type of case. (DWI, Possession of Controlled Substances, Sexual Assault, etc).  

     Typically, an individual who cannot afford to hire an attorney must go to court on the date that he or she is scheduled for the initial hearing, and ask the court to appoint an attorney. The court will then conduct an interview to determine whether the person qualifies for a court appointed lawyer and refer to it's list of available attorneys to appoint.

     Now for the scary part, court appointed lawyers typically work for drastically reduced fees. Many counties pay attorneys a "flat fee" of $100 to $150 per misdemeanor case. In San Antonio (Bexar County) attorneys earn $100.00 flat fee for a misdemeanor plea and $25 for each additional case a person may be charged with. Felonies pay a little more depending on the level of felony. Additionally, in many counties it takes between 4 to 6 weeks after a voucher is submitted for the payment to be made. That means that for "court appointed" attorneys to make ends meet, they have to work out as many cases as they can as quickly as they can so they can get paid as soon as possible. (Believe it or not, attorneys have bills to pay too).

     I know some court-appointed lawyers are very well qualified and do very good work. However many are in it for the quick flip of a case so they can submit a voucher and be paid sooner rather than later. (PLEAD 'EM AND BLEED 'EM-When a client is informed that he or she is guilty and should just plead guilty, without much effort without much by way of investigation or legal research, [plead em] and the client is left with a mountain of fines, fees, court costs, and other associated fees that go along with a plea [bleed 'em])

     Many cases are disposed with a plea bargain, but will your court-appointed attorney put in the work necessary to ensure the best plea-bargain possible? Will he or she treat you with respect and dignity? Will he or she be prepared to put the time into preparation of your case for trial? Will your attorney have trial experience? Maybe. Do you really want to take that risk?  Be careful what you wish for. . . you just might get it. 

Modification of the Judgment

Posted on October 18, 2017 at 11:50 PM
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 Deadly Weapon finding even though the State abandoned the Aggravated Assault with a Deadly Weapon charge prior to sentencing. 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.

Affirmative Links

Posted on October 18, 2017 at 1:35 AM

     Sometimes arrests are made of multiple people for a single case. For instance, in a situation where a vehicle is pulled over and searched the officer may discover the presence of marijuana or some other contraband in the vehicle. Typically, in such a case, if no one "accepts responsibility" at the scene (Which I do not recommend anyone ever do) everyone will get arrested.

Often, individuals are advised by their friends, family, or loved ones that they might as well just plead guilty  because they were present where drugs were found and they will obviously be found guilty. Sometimes, defendants receive that same type of advice from inexperienced attorneys or experienced attorneys looking to quickly flip a case. (See my blog "Be Careful What you Wish For. . . You Just Might Get It")

     Even if the vehicle was yours or was in your care, you have a right to fight the case. Aside from potential issues with challenges to the validity of the stop, search, and seizure, mere presence is not enough for the State to prove its case against you Beyond a Reasonable Doubt. The State must prove additional independent facts and circumstances that affirmatively link the defendant to the contraband in such a way that it can be concluded that the defendant had knowledge of the contraband and exercised control over it.. Nhem v. State, 129 S.W. 3d 696, 699-700 (Tex. App.-Houston [1st Dist.] 2004, no pet.).  

     This applies to any place where multiple people may be implied in a possession case, including a residence, office building, or any other location. Don't give up the fight simply because it looks like it will be difficult. If you've been arrested for possession of marijuana or possession of a controlled substance in San Antonio, Corpus Christi, Brownsville, or any other city in South Texas, call the Law Office of Joseph Moreno to assist you in your defense.

Sometimes It's the Little Things

Posted on September 26, 2017 at 4:55 PM

     One of the things I learned about the practice of criminal defense while working as a student attorney in the Center for Legal and Social Justice in San Antonio 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 or probable cause 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 in Brownsville, Texas 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 Olmito, Texas, 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).


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