Double Jeopardy–What does it mean?

Supreme Court Case Update

Martinez v. Illinois.  572 U.S.____(2014).


Esteban Martinez was indicted for aggravated robbery and mob action in August 2006.  The victims were Avery Binion and Demarcus Scott, two well know felons in the community.

us courthouse and post officeAfter multiple delays and continuances, the trial started on May 17, 2010.  However, the prosecutors two witnesses–Binion and Scott–did not show up to court to testify for the prosecution.  The Court gave the prosecutors the option to dismiss the case against Martinez prior to the jury being empaneled and sworn in.  However, the prosecutors opted not to dismiss.

Instead, the prosecutors allowed the trial court to empanel and swear in the jury.  Then they elected not to participate in the trial.  They gave no opening statements or presented any witnesses.  As a result, the trial court acquitted Martinez.

The prosecutors appealed the denial of their request for a continuance.  The intermediate appellate court and the Illinois Supreme Court agreed with the prosecutors and reversed the acquittal.

Martinez appealed to the United States Supreme Court and the Court reversed the Illinois Supreme Court.  Click here or here to read the Court’s opinion.

The US Supreme Court found that Illinois Supreme Court erred because it violated a fundamental rule–that jeopardy attaches when jury is empaneled and sworn.  Once jeopardy attaches, it also prohibits the government from filing an appeal.

Rule:  “A jury trial begins, and jeopardy attaches, when the jury is sworn.” 

Genaro R. Cortez

Phone:  210.733.7575


DWI Jury Selection: Misdemeanor, Bexar County, Texas

DWI Jury Selection:

Jury selection maybe the most important part of a jury trial. When done correctly, it can set up your case for a verdict of not guilty.  When done without planning or proper analysis, jury selection can be disastrous.

For instance, if you are charged with animal cruelty, then the last thing you want to see is Snoopy, Scooby Doo, Astro, and other jurors who are sympathetic to the prosecution sitting in the jury box. So how do we avoid this?  With preparation and planning.

Purpose of Post:

This post provides an overview of DWI Jury selection in misdemeanor prosecutions in Texas state courts, i.e., DWI-1st and DWI-2nd prosecutions.  Actual jury selection will depend on the facts of your case.  This post and blog are not intended as legal advice.  It is IMPORTANT that you speak with a qualified and experienced DWI Attorney before making any decision on your case.


Two important goals of jury selection are:  (1) identify favorable and unfavorable jurors; and (2) educate the panel on the theory of your case.

[Note–there are multiple goals in jury selection–but these are the ones I focus on in DWI Defense cases for a variety of reasons including time limitations by the court.] For more information on jury selection in general–I recommend you visit Robert Hirschorn’s website, who is the master of the art and science of jury selection.

One final thought–jury selection is as much art as it is science.  Your lawyer–indeed all lawyers–should know the law of the case they are working on.  But jury trials carry an intangible human component that is unique.  In addition to knowing the law, the best trial lawyers in America know how to tell your story to a jury.

The Law:

In Bexar County, Texas, courts typically give prosecutors and defense attorneys between 20-30 minutes each to conduct jury selection ( voir dire).  Because time is limited, it is extremely important for defense counsel  to target his questions towards the goals of jury selection:  (1) identify favorable/unfavorable jurors; and (2) offer an alternate explanation of why your client was not intoxicated (theory of the case).

A party can challenge a witness for cause for several reasons:  (a) statutory disqualifications under Chapter 62.102 of the Government Code; (b) affinity of the juror with the case, party, or witness-chapter 62.105 of Government Code and (c) for bias and prejudice–see Chapter 35.15 of Texas Code of Criminal Procedure.

Defense counsel also gets three peremptory (Article 35.15 Texas Code of Criminal Procedure) challenges in Bexar County, Texas misdemeanor court.  These are challenges that can be used without assigning a reason.  They are invaluable and should be used wisely.

For instance, a potential juror is not disqualified for cause, but for some reason the juror is not favorable to your client–i.e., potential juror rolls eyes at your client, gives him/her dirty looks, is very prosecutor friendly–the reasons are infinite.

Areas of Inquiry:

The areas of inquiry will vary from case to case.  But defense counsel should inquire about the following in misdemeanor DWI prosecutions:  (1) defendant’s right not to testify; (2) the burden of proof in criminal prosecutions; (3) presumption of innocence; (4) innocent explanations for poor performance on standard field sobriety tests; and (5) issues with breath and blood alcohol testing.


Jury selection is a critical part of a jury trial that plays an important role in the outcome of the case.  If you are arrested for a misdemeanor (or felony) DWI offense, then it is important that you speak with an experienced DWI Attorney who will properly asses the strengths and weaknesses of your case and has the skill set to successfully defend you at trial.

Genaro R. Cortez
Phone:  210.733.7575

The Confrontation Clause–What does it mean?

Right To Confront Witnesses:

The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him.”

But what does this mean?

The Supreme Court, in Crawford v. Washington, 541 U.S. 36, 59 (2004) interpreted the Confrontation Clause to prohibit “testimonial statements” from witnesses who do not testify at trial unless (1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the witness.

Stated another way, the rule is:  “if an out-of-court statement is testimonial in nature, it may not be introduced at trial unless the witness who made the statement is unavailable and the accused had a prior opportunity to confront that witness.”  Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) (emphasis added).

What is a testimonial statement?

Examples of evidence that is testimonial:

  • prior testimony from a witness at a preliminary hearing;
  • statements made during police interrogations;
  • forensic lab reports stating that a suspected substance is cocaine [or other controlled substance such as heroin, meth, etc.];
  • Reports listing the blood-alcohol analysis in DWI prosecutions.

This is a non-exhaustive list of evidence that is testimonial.  But what other statements are testimonial?  Which witnesses do prosecutors need to call to testify to satisfy the confrontation requirement?  What if the witness (i.e., medical examiner or lab technician) is fired, dies, or is on maternity leave at the time of trial?  Can the autopsy results or blood-alcohol analysis be admitted by someone else?  These and other questions have created problems for lower courts.

Supreme Court Review:

Lyle Denniston of Scotusblog is reporting that the Supreme Court will consider granting certiorari (judicial review) on a host of cases described above to review what constitutes “testimonial” evidence, witnesses that are necessary, and how to review error if testimonial evidence is wrongfully admitted at trial.

The review may happen as soon as May 15, 2014. I will keep you posted on the status of this issue.

Genaro R. Cortez
Phone:  210.733.7575


Recent Case in Fifth Circuit: Right To Trial By Jury

USA v. Juan Agudin Salazar (hereinafter “Defendant”):


Defendant was charged with multiple drug and gun violations in federal court.    Prosecutors presented overwhelming evidence that Defendant committed the crimes that were alleged.  The Defendant, against advice of counsel, testified and confessed to the charges.  The district court then instructed the jury to return a verdict of guilty.  A few minutes later, the jury returned a verdict of guilty against Defendant.  Click here for pdf copy of opinion.


The Fifth Circuit Court of Appeals reversed the convictions because the trial court’s instruction for a directed verdict of guilty violated the defendant’s Sixth Amendment right to a “speedy and public trial by by an impartial jury.”  This prohibits a trial court from entering a directed verdict of guilty even where the evidence of guilt against a defendant is overwhelming.


The right to a trial by jury is an important safeguard for people charged in state or federal court.  If you do not wish to plead guilty, then its the Government’s burden to present evidence beyond a reasonable doubt on every element of charge (or charges) against you.

For that reason it is important to discuss your trial options with your attorney to determine the strengths and weaknesses of taking your case to trial and whether or not you wish to waive this right in exchange for a plea-bargain agreement.

Genaro R. Cortez
Phone:  210.733.7575

Where is client being detained? (San Antonio, Texas)

If someone you love is arrested, then you need to determine where they are being detained and for what charge.

Before you call the appropriate agency–you should have the full name, State Identification Number, i.e., “SID  #” (if applicable), Date of Birth, or United States Marshall Number of the person arrested.

Below are links to local law enforcement agencies that may have information on where your loved one is detained.

Genaro R. Cortez

Phone:  210.733.7575
Email me!


Supreme Court: Missouri v. McNeely and Search Warrants for DWI Blood Draws

Missouri v. McNeely

The Supreme Court ruled last April (2013) that police should obtain a search warrant to obtain a sample of a suspect’s blood absent exigent circumstances, i.e., police need to get a warrant to search your blood where there is no emergency or exigent circumstance.  The fact that alcohol is metabolized in a person’s body does not automatically constitute an exigency that excuses a police officer from obtaining a search warrant for a person’s blood.  Further, whether police should obtain a search warrant for a DWI blood draw will depend on the totality of the circumstances of each case. 


A Missouri Police Officer observed Tyler McNeely speeding and repeatedly crossing the center lane at 2:08 A.M.  After police approached McNeely, they noticed he was unsteady on his feet when he exited the vehicle, had slurred speech, blood-shot eyes, and smelled of alcohol.  Further, McNeely stated that he had “a couple of beers” at a bar.  Police then drew McNeely’s blood without a warrant.  The results were .15, which is almost twice the legal limit of .08.

The arresting officer testified that he did not obtain a warrant because he felt that he did not need one in this case.  The arresting officer also failed to show there were any exigent circumstances that would excuse the warrant requirement.

The Court then affirmed the trial court’s decision to exclude the blood results because police failed to show there were exigent circumstances in this case justifying an exception to the warrant requirement of the Fourth Amendment.

***   ***   ***

[Author’s Note:  The facts listed above are fairly typical for misdemeanor DWI arrests. This is important because not all cases with these facts result in a criminal conviction.  Indeed many suspected DWI drivers with these fact patterns opt for a jury trial–for example when a citizen-accused disagrees with the officer’s characterization of events or the video/evidence does not support the arresting officer’s observations and reports.

Also, in Bexar County, law enforcement obtain warrants in misdemeanor cases as a matter of procedure.

This case also does not address Texas Transpiration Code 724.012(b) that provides for mandatory blood draws under certain circumstances, for example where the driver of a motor vehicle or watercraft is involved in an accident and someone has died or is seriously hurt.]

What does this mean for my case?

The San Antonio Express News reported that the Bexar County District Attorney’s Office is changing its procedures “in an abundance of caution” in response to the Supreme Court’s ruling and advising police to obtain search warrants in all Felony DWI Cases in Bexar County, Texas.   

What should I do if I am arrested for DWI?

You should call a qualified attorney to discuss your case and determine the best course of action for you.


PHONE:  210.733.7575