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Thursday, February 27, 2014

CCA Finds Fourth Amendment Protection for Cell Phones; Kerrville man already arrested 18 times gets probation again; A Leader Not a Lawyer: Karen Harris Candidate for State Rep. Dist. 53

The Texas Court of Criminal Appeals yesterday held in Texas v. Granville that the Fourth Amendment protects against searches of cell phones incident to arrest. Texans now cannot have the contents of their cell phones and other electronic devices searched indiscriminately after they’re booked in jail. This was a major privacy and Fourth Amendment victory, once again putting the state at the forefront of electronic privacy issues nationally.
The term "papers and effects" obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in "the cloud" and accessible by those electronic devices. But the "central concern underlying the Fourth Amendment" has remained the same throughout the centuries; it is "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." This is a case about rummaging through a citizen's electronic private effects - a cell phone - without a warrant.

Why do Repeat Offenders Keep Getting Probation in Kerrville?
The KDT reports that one Earl Gwynn, Jr. pled guilty to assaulting a woman, and got a probated sentence. Mr. Gwynn is no stranger to the criminal justice system. He was convicted in 2007 of threatening a woman with a gun. He was convicted the same year of kicking and slapping another woman. Add to that at least three DWI convictions, and a few more convictions, and he's close to 20.

Now, as a lawyer who represents criminal defendants, I always try to get the best result for my client that I can. It's my duty to do it. However, I have to say, if I were the prosecutor I would not offer probation to a thug like this who has proven that he has not learned his lesson, and if I were the judge, I would reject the plea.

Big Texas Inn Hiring and Employment Practices
Two recent cases that I have handled have been in the news. Today's Kerrville Daily Times reports on lawsuits that I filed on behalf of former employees against a local businessman, Jerry Lee Reed, and some of his companies, including the one that owns Big Texas Inn. The article is behind a paywall. In January a federal court jury in San Antonio found that Reed violated the Fair Labor Standards Act (FLSA) by not paying employees of the motel minimum wage and overtime. Employees are required to live on premises, and instead of wages their compensation consists of lodging and meal allowances.

The KDT article quotes Reed's lawyer in the second case (against Reed and Star Dreamz) as accusing my client of fraud because he didn't disclose his criminal history on his job application. That is false. Probably libel. The conviction was disclosed on the application. At the time, Reed had no policy or procedure for conducting criminal background checks on employees at his motel. A subscription to Publicdata.com costs about $35 a year. The Texas Dept. of Public Safety has a free website for checking criminal backgrounds. Apparently, Big Texas Inn doesn't use either of them, unless they've updated their procedures.

Wednesday, February 26, 2014

Darwin Award for Man Who Shoots Self in Head While Teaching Girlfriend Gun Safety; Black Pastors Call for Impeachment of Eric Holder; Drug Free Zone and Entrapment and Measuring Distance

Darwin Award Candidate:  Man Accidentally Kills Self With Gun During Demonstration On Gun Safety from Huffington Post

A man from Independence Township, Michigan, accidentally shot himself to death on Monday while teaching his girlfriend about gun safety, the Oakland Press reports.
The 36-year-old man, whose name has not been released, was showing his girlfriend how his three handguns are safe when they aren’t loaded, according to the Detroit Free Press. He was attempting to demonstrate the safety of the handguns by holding them to his head and pulling the trigger.
The third gun fired, and the man was struck in the head. He was pronounced dead at the scene.

Black Pastors Call to Impeach 'Dangerous Ideologue' Eric Holder from Breitbart

The rising ire of a national coalition of black pastors reached a climax Tuesday as the organization announced a campaign to call for the impeachment of Attorney General Eric Holder on the basis that he has violated his oath of office by “attempting to impose same-sex ‘marriage’ throughout the nation…”

Drug Free Zones: Entrapment Not a Defense; Measure as the Crow Flies

Prosecutors and police love to charge defendants with selling drugs in drug free zones. As an article on the Texas prosecutors’ website says, “One tool assists prosecutors in their quest for a meaningful prison term for drug offenders: an affirmative finding that the offense was committed in a drug-free zone (DFZ). The DFZ finding can, in many cases, rival a deadly weapon finding in effectiveness.”

A DFZ finding “enhances” the punishment range for a delivery charge, meaning, the minimum and maximum sentences are longer, and the defendant must serve more actual time in prison.

DFZ’s are generally defined by statute as anything within a 1,000 foot radius of a school, playground, daycare center, video arcade, and other places where children are likely to congregate. Police have maps that show these zones, and will have their confidential informants arrange to buy drugs from the target in a DFZ. 

Entrapment is not a defense. Texas Penal Code 8.06 provides: It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.  Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. 

Courts have held that a drug dealer is already predisposed to commit the crime, so it is not entrapment. 

Another potential defense that the courts have rejected is that the distance should be measured along the path that a car or pedestrian would take to get the school or playground. In other words, measure around buildings, lakes, and so on. The rule is summarized in U.S. v. Watson, 887 F.2d 980 (9th Cir. 1989):
The Second Circuit rejected the same argument in United States v. Ofarril, 779 F.2d 791 (2d Cir.1985) (per curiam), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986), and we agree fully with its reasoning. Requiring speculation about pedestrian routes would create uncertainty in a statute which was meant to establish clear lines of demarcation. As the Second Circuit observed: "Such a tortuous reading would violate the plain meaning of the statute. Moreover, it would generate needless and time-consuming debate, and ultimately hamper the statute's enforcement." Id. at 792 (citations omitted). As Judge Kram noted in United States v. Cunningham, 615 F.Supp. 519 (D.C.N.Y.1985), "the statute is designed to protect school-children from the direct and indirect dangers posed by the narcotics trade." Id. at 520. School children are not known for taking what adults may conclude would be the most appropriate routes to and from school. Only a straight line measurement creates a readily ascertainable zone of protection.

Tuesday, February 25, 2014

Kerrville Slave Ranch book price reduced; FBI investigating Bexar County courthouse corruption; Super-Rich Drag Party; Red Flags for Problem Clients

Slave Ranch Book Price Reduction
I've dropped the price of my Kindle book, The Texas Slave Ranch: How a Degenerate Ranching Family Got Away With Murder, available on Amazon.com for $1.99. Sales are picking up and I hope this will give them an extra boost.

FBI to Bexar County Courthouse: Your Phone Has Been Tapped

 The San Antonio Express-News has learned that hundreds of letters have been sent by federal authorities notifying people that a wiretap was used to eavesdrop on their phone calls and texts with Al Acevedo Jr., who is under investigation over allegations that he provided gifts or bribes to people within the criminal justice system for favors on his cases.

SAN ANTONIO — A San Antonio defense lawyer is at the center of a federal investigation into allegations of corruption of the criminal justice system in Bexar County, the San Antonio Express-News has confirmed through several sources, including the attorney himself.

Problem Clients - Red Flags
Here are some red flags that warn that a potential client is going to be trouble. PC has already done a lot of research and knows all about the law; PC who says 'it's not about the money, it's the principle; PC who wants it done right now; PC who waits until last minute to file an answer or appeal or whatever; PC whose case is bumping up against statute of limitations; PC who has already had one or more (the more the worse) lawyers, and wants to tell you sad tale of how they wouldn't return calls, wouldn't work the case, sold them out, and so on; PC who wants to haggle over the fee; PC who claims he/she heard you are the best and meanest lawyer in town and will "show the bastards"; PC who says "I have a brother in law whose son knows a man he works with who got a million dollar settlement"; PC who doesn't want to know how much it will cost, because has no intention of ever paying..
There are lots of others but these immediately come to mind.

One-Percent Jokes and Plutocrats in Drag: What I Saw When I Saw When I Crashed a Wall Street Secret Society
I don't like Obama's attempts to whip up class envy, but the some of the so-called "one-percenters" are an arrogant bunch, like the subjects of this article about a bunch of investment bankers in NYC getting dolled up in drag. 

Friday, February 21, 2014

Former Bandera Biz Owner found liable in federal trial for violating Fair Labor Standards Act

A recent case that I tried to a jury in federal court in San Antonio about a month ago is the subject of an article in this week's Bandera County Courier. It's titled and available online here: Former Bandera biz owner violates FLSA. I sued the company that owns the Big Texas Inn in Kerrville, and its owner, Jerry Lee Reed (not the late Nashville guitar picker). A jury found that he failed to pay my two clients overtime and minimum wages.

If you'd like a good laugh, read the reviews on Big Texas Inn on Trip Adviser. Guest report cockroaches, bed bugs, and other nasties.

As BCC notes, Reed is still advertising his old hotel in Bandera that burned down a while back. There are more hilarious stories of people coming to Bandera to see the "Cowboy Capital of the World" from as far away as England, with reservations at Old Market Square, only to find vacant lot. When they call, they are redirected to Big Texas Inn.
"Reed continues to hawk Bandera's long-defunct Old Texas Square hotel-eatery complex at www.texassquare.com. The website is replete with resplendent images of the once-historic hotel, which included the Mesquite Grill Steak House and Tequila Ritas, "a gorgeous new cantina" featuring "Frozen Painkillers." Of course, the telephone number listed on the website, 830-896-1711, goes directly to Big Texas Inn in Kerrville.
The person answering the Courier's call in January freely admitted that the hotel complex had burned down "about a year ago" and prospective guests calling the number would be staying in Kerrville rather than the Cowboy Capital of the World.
When asked why the website was still viable after a year, the unidentified employee replied, "When Bandera gets booked up, (tourists) come here and we get a lot of business that way."
Caveat emptor."

I wish Kerrville had a weekly paper like the Bandera County Courier. 

Tuesday, February 18, 2014

Kerr County Judge Race, Slave Ranch Ghosts; Violent Crime Up in Kerrville

The Kerrville Daily Times ran a half page ad yesterday paid for by the Friends of Bob Waller for County Judge, about his opponent's old indictment for tampering with evidence. A local reporter called me yesterday and asked if I paid for the ad. The answer is no.

The indictment was part of the fallout from the Kerrville Slave Ranch/Ellerbrecht case, and I do cover it in my Kindle book, The Texas Slave Ranch - How a Degenerate Ranching Family Got Away With Murder, available on Amazon.com

Kerrville Police report more rapes, murders in 2013
Kerrville Daily Times 02/17/14
Figures recently released by the Kerrville Police Department indicate rapes, murders and robberies increased in 2013 compared to the year before, while the number of less serious assaults and property crimes remained fairly steady.
There were three murders last year and seven reported sexual assaults, according to data the city submits to the Texas Department of Public Safety and the FBI. That was three times the number of killings and more than three times the number of rapes reported the previous year. There were two additional killings reported near Kerrville last year — in Harper and Ingram — and criminal charges are pending in those cases.

Ex-police chief indicted in fraudulent $4M scheme

LUBBOCK, Texas (AP) — A former Central Texas police chief has been indicted by federal prosecutors, who say he sold and pawned $4 million worth of equipment, including a machine gun, he fraudulently obtained through a federal program.
Federal prosecutors said Friday in a news release that former Rising Star police Chief William Jason Kelcy was indicted Wednesday by a grand jury in Lubbock on charges that include theft of government property. He is also accused of trying to sell a Thompson Ramo Wooldridge M14 machine gun.
Kelcy, 41, served as chief in Rising Star, about 50 miles southeast of Abilene, from 2009 to 2013. His department participated in a program that transferred excess Department of Defense property to local law enforcement agencies.

Snake-handling Ky. pastor dies from snake bite

MIDDLESBORO, Ky. (AP) — A snake-handling Kentucky pastor who appeared on the National Geographic television reality show "Snake Salvation" has died after being bitten by a snake.
According to a news release from the Middlesboro Police Department, someone called first responders at about 8:30 p.m. on Saturday regarding a snake-bite victim at a church.
When the ambulance arrived, they were told that Jamie Coots had gone home. Contacted at his house, Coots refused medical treatment. Emergency workers left at a little after 9:00 p.m. When they returned about an hour later, Coots was dead.

Man killed in attempted robbery ID'd

SAN ANTONIO — A man police say was killed trying to rob a liquor store Friday night has been identified.
The Bexar County Medical Examiner's Office identified Elliot Lawrence, 30, on Saturday as the man police found dead at the Boulevard Spirits liquor store at 5715 Randolph Blvd.
According to San Antonio police, Lawrence went to the store around 9 p.m. and demanded cash while wielding a Taser. The store's clerk pulled out a handgun during the robbery and fired several shots at Lawrence, police said. 

Friday, February 14, 2014

Bexar District Judge Resigning - FBI Investigating; Ninth Circuit Renders Good Opinion on Conceal Carry and Second Amendment

Judge expected to resign amid federal corruption probe

SAN ANTONIO — Republican state District Judge Angus McGinty is expected to resign as soon as Friday amid allegations he reduced bail on defendants who appeared before him in exchange for auto repairs on his personal vehicles, federal and courthouse sources confirmed.
McGinty's expected resignation is related to an FBI investigation centered on defense lawyer Al Acevedo, who confirmed last month to the Express-News that he was under investigation related to allegations of bribery of judges and others in the criminal justice system over purported favors on his cases.

Ninth Circuit Strikes Down CA Law Restricting Concealed Carry

In a 2-1 decision issued on February 13th, the Ninth U.S. Circuit Court of Appeals ruled "San Diego County violates the Constitution's Second Amendment by requiring residents to show 'good cause'" before being allowed "to obtain a concealed carry permit."The court ruled that the right to keep and bear arms is, in and of itself, a sufficient cause for bearing arms for self-defense. Moreover, it is a sufficient cause both inside and outside of one's domicile. 

The Poet Iran Executed

The hanging of poet Hashem Shaabani tells you everything you need to know about Iran's regime.
As Iranian poet Hashem Shaabani was dangling from a noose two weeks ago, desperately grasping for his last breath of air, one wonders what he would have thought about Western leaders who call President Hassan Rouhani a moderate.  What exactly is moderate, Shaabani could have thought, about a regime which brands a poet an “enemy of God” and strangles him to death?
The crazy thing is that by the logic of the Iranian government, Shaabani had to be killed.  He criticized God and the punishment for blasphemy is clear: death.  Technically, Shaabani criticized the regime by speaking out against repression of ethnic Arabs in the Khuzestan province, but since the regime sees itself as the representative of God on Earth, his fate was sealed.  It’s not called a theocracy for nothing.
As world powers attempt to negotiate an accord with Iran, they would do well to keep Shaabani in mind.  What does the hanging of a poet have to do with nuclear negotiations?  Everything. It gets to the heart of the nature of the regime.  

Kentucky’s Finest Antihero: Walton Goggins on Justified’s Chameleon Villain

“The people of Harlan County, rich and poor, will marvel at your debasement and banality and take your suicide as the last act of a coward because a small town never forgets. They will spit venom when they hear your name … And death will  not be the end of your suffering.” 

Sunday, February 9, 2014

Texas Slave Ranch and Other Hill Country Bizarre Crimes

The True Story of the Texas Slave Ranch - How a Degenerate Ranching Family Got Away With Murder (Texas Grotesque) [Kindle Edition] Richard L. Ellison , Chief Ellison

"Pete the Cook" and Kerr Co. District Attorney Ron Sutton

I am considering expanding this book to include more stories of Kerrville and Hill Country crimes, and getting it published in old style print form. Stories I know about include the serial killer of little children, Nurse Genene Jones, the bizarre violent deaths of Kimble County Sheriff Hal Bynum and his wife Connie, a dynamite bombing in Mason of a witness in a political financial scandal that could have involved LBJ. If you know of any others I'd greatly appreciate you letting me know. You can email me at tejasbulldawg@gmail.com or  leave an anonymous comment on this blog. 

Federal officer charged with attempted murder in McAllen shooting

From San Antonio Express
MCALLEN — A U.S. Customs and Border Protection officer was arrested Friday at the Border Patrol checkpoint in Falfurrias in connection with an early morning shooting in McAllen, said Lt. Joel Morales, a McAllen police spokesman.
Morales said the shooting involved CBP Officer Randal Wayne Sutterfield, 41, and his girlfriend's brother, who suffered a gunshot wound to the head. The victim was listed in stable condition at the McAllen Medical Center.

Russian Who Lit Olympic Cauldron Tweeted Racist Picture Of Obamas Last Year

Those Russians are so insensitive.

With Big Iron on Her Hip: Wendy Davis Favors Open Carry of Guns

by James Moore in Huffington Post

Another bit of news rolls out with more potential Wendy Davis voters asking the question: "What in the hell is she thinking?" In a country of damned-near (I like it that damned-near can be used as a compound modifier) weekly school shootings, the Texas Democratic gubernatorial hopeful told the Associated Press she favors an "open carry" law for gun owners, which means, uh, she thinks people should be able to openly carry guns.
Pragmatism is winning out over principles.
Does Wendy Davis really believe Texas voters are this stupid?

'Flummoxed' Democrats Distance Themselves from Newly Pro-Gun Wendy Davis

Texas Democrats have fiercely defended their gubernatorial candidate, Wendy Davis, through a scandal in which the state senator was caught lying about her status as a single mother and about paying for her own education. However, now that Davis is supporting open carry laws, Democrats and gun control groups are shying away.

Woman Shoots, Kills Boyfriend After Being Punched, Dragged Across Floor

From Breitbart News
Orangeburg, South Carolina Sheriff Leroy Ravenell cited self defense for a woman who shot her enraged boyfriend after he beat her and dragged her through the yard and across the floor on February 2nd.
According to the Post and Courier, 24-year-old Jeremy Scott Williamson "became enraged after looking in his girlfriends's purse and finding papers where he was listed as a suspect for a crime in another jurisdiction." After he argued with her about the papers and refused to let her call her mother to come get her, the woman ran out in the yard where Williamson chased her down and attacked.
He dragged her back inside, "hit her on the back of the head and threw her to the floor."
After hearing the disturbance Williamson's grandfather entered the room and asked his grandson to stop. When Williamson paused to look at his grandfather, the girlfriend was able to grab a handgun and "[shoot] him in the abdomen."
Williamson died from the gunshot.