(or, “How the Local Judiciary is Currently Protecting the Purity of Our Precious Bodily Fluids”) Today, in Comal County Court-at-Law No. 1, I watched someone go from a plain vanilla deferred adjudication for a Possession of Marijuana charge to ten days in jail in the space of less than three hours. I thought to myself that maybe it’s time for an update about the way in which the county courts-at-law in Comal County are handling plea bargains for Possession of Marijuana cases. A while back, this blog reported that both Judge Randy Gray and Judge Charles Stephens were handling marijuana plea bargains in much the same way.

At the time of the entry of a “guilty” or “no contest” plea, a defendant was typically grilled about whether or not he would test dirty for marijuana on a urinalysis. If the defendant responded “yes,” then the plea bargain was typically busted and the parties went back to square one in negotiations. If a defendant responded “no,” but then later that day tested positive on a drug test, then the defendant was punished with ten days in jail as a special condition of any probation. The good news is that neither of the judges are still busting plea bargains left-and-right. Each judge now has a different method of handling the entry of a plea. The bad news is that a defendant can still quickly end up wearing one of the Sheriff’s orange jumpsuits. In Judge Gray’s court, if a person is up at the bench and thinks he might test positive on a drug test, the judge will allow him to reschedule his case for a couple of weeks before making the plea bargain final.

The bad news in Judge Gray’s court is that if the defendant shows up at the later court date and tests positive for marijuana, he is still looking at ten days in jail. In Judge Stephens’s court, if a defendant tells the judge that he will test positive for marijuana, the judge will normally approve the plea bargain, but will require the defendant to do more frequent drug testing as a condition of probation in order to make sure that the level of THC in the his system is going down. However, if the defendant tells the court that he will test clean, but then doesn’t, it back to ten days in the county jail. If I were a defendant about to enter a plea in a marijuana case in front of one of these judges, I think I would stop at a pharmacy on the way to the court, buy a do-it-yourself drug test, and try it out in a courthouse men’s room before ever saying a word on the record. And no, CVS and Walgreen’s did not pay me to say that.


Comal County has gotten a reputation for being a tough place to defend drug cases.  However, we recently won a jury trial which shows that, at least with respect to Possession of Marijuana cases, this reputation may be based more on myth than reality. Comal County's image when it comes to drug cases is based largely on two facts:  the County is politically very conservative, and it has elected County Court-at-Law judges who routinely hand out stiff punishments in marijuana cases.  But juries in marijuana cases, on the other hand, are a sometimes a different story.  What you find at jury selection in marijuana cases in Comal County is that many people who go around calling themselves "conservative" are, in fact, libertarians, and actually favor the legalization of marijuana. Last week, for instance, we picked a jury in a Possession of Marijuana case involving an arrest of a tuber on the Comal River during Fourth of July Weekend of last year. 

When the State began questioning potential jurors about whether they believed that marijuana should be legal in some circumstances, such as for medical use, almost every hand went up.  When the State asked whether the jurors could follow the law and convict someone of Possession of Marijuana where there was no medical issue, fully a third of the potential jurors (including a retired Drug Enforcement Administration agent) stated that they would be unwilling to convict anyone of possession of a small amount of marijuana, that it would violate their consciences to do so. 

Upon further questioning by the judge concerning their ability to follow his instructions, the judge allowed some of these jurors to remain in the jury pool.  The State then was forced to use up all of its peremptory strikes to get rid of these jurors, leaving a much less State-oriented final jury than what you normally see in Comal County. The jury that was finally sworn in was a jury that went into a marijuana case much more willing to question the State's evidence than a typical Comal County criminal jury.  The end result:  a "not guilty" verdict.  Even though the cop in our case testified that our client admitted to having knowingly possessed the marijuana in question, the jury was unwilling to give the cop the benefit of the doubt when it came to judging his credibility. 

When we spoke to jurors after the trial, they faulted the arresting cop for sloppy evidence collection and for failure to record the conversation that he had with our client. The lesson to draw from this trial:  If the local judiciary is inclined to bury defendants in misdemeanor marijuana cases under the courthouse, then local defense attorneys should get more inclined to push marijuana cases to jury trial dockets.  In Comal County marijuana cases, it's time to quit believing in myths and time to start believing in jurors.


When I became a criminal defense lawyer, I never knew that part of the job would be acting as a used car broker.  But of instead of selling cars, what I do now it help my client's buy their cars back from the State of Texas. I've spilled much typeface in this blog speaking about how, nowadays, in criminal cases, it is the collateral consequences of a crime, rather than the actual punishment for a crime, that often affects a defendant's life the most.  Many defendants in drug cases now lose, not just some liberty, but also their cars, their homes and their cash in asset forfeiture proceedings.

Under Chapter 59 of the Texas Code of Criminal Procedure, the State may, not only seize property that was used in the commission of a felony drug offense as evidence, but may also sue in a civil lawsuit to make that property the property of the State.  The kicker is that, unlike the criminal charge that is the basis of the original seizure, the State is not required to prove its case beyond a reasonable doubt. 

Instead, the State is allowed to seize homes, office buildings, the contents of bank accounts, etc., by proving its case by a standard known as a preponderance of the evidence -- the same standard by which someone would have to prove negligence in a fender bender case. Needless to say, with the economy in the toilet and counties facing revenue shortfalls everywhere, asset forfeiture proceedings have become increasingly tempting to District Attorneys' offices.  Within the last month, for instance, the Comal County District Attorney's Office took possession of a commercial property where it was alleged that a tenant (not the owner) was selling drugs.  And in the past year, I have been approached concerning representation in more asset forfeiture cases than in my previous fourteen years of private practice combined.  And it's not just big, expensive items of property that are being seized.  I recently filed answers to lawsuits seeking forfeiture of  1975 and  1976 vehicles respectively. 

Eventually, my clients may wind up having to offer to buy their cars back from the State as a means of settlement in order to get their cars back. Ironically, a statute that was originally intended to put big-time drug dealers out of business is now being used in simple possession cases to take away a person's basic means of transportation, as well being used against third persons who did not act as  parties to a crime.  When economic times are tough, the criminal justice system, it seems becomes more about collecting revenue than protecting the public, and my job becomes about haggling for better than sticker price.

Page 1 of 3