Working with the Appellate Bar
Again, it is essential for a defense lawyer to be prepared during the initial DWI hearing. A good defense attorney will act as if there will be an appeal. Even if an appellate lawyer knows the rules in this area, he may not always know what our original strategies were, what we are trying to do, and what we need to stay away from so we do not end up losing the good case law we had but also giving us bad case law. Basically, an appellate lawyer really needs to know how to try a DWI to know what they are doing in the appeal. In Emerson v. State, it looks like a great win for the defense because the HGN test is kept out unless it is administered properly and the VGN is excluded.1
A closer look shows us that the One Leg Stand and the Walk and Turn were rubber stamped as valid tests and are almost always allowed to be testified to in court by the arresting officer. If you consider that these two tests have a lower trust level than a polygraph test, which is not allowed into Texas criminal courts, you realize that the Emerson case should not have been appealed. The trial record did not create the proper environment for the best result so it should have been passed on. If the trial lawyers and appellate lawyers could work together, it would benefit us both.
In most cases, you would not file an appeal in a DWI case unless you were able to prove that the stop was invalid, harmful evidential error had occurred or that your client’s Constitutional rights were violated. All too often, an appellate lawyer will not bother to consult the trial lawyer who has information about the blood draw, the field sobriety testing, and the implied consent rules. Since someone is an appellate lawyer, they may automatically assume that they know how to do appeals; but they were not in the courtroom during the original trial. Therefore, they may not be aware of the background story of certain issues that are on the record. Consequently, I believe that it is important for criminal defense lawyers and appellate lawyers to sit down at the same table.
In addition, I have had some judges who made terrible rulings, despite citing the correct law during my objections, but I nonetheless heard, “Not Guilty” from the juries. Since these judges often do not know the law or they interpret the law incorrectly, they will continue to make poor rulings. This is common because the victories are not appealed and the higher courts never get the opportunity to correct these judges. This results in guilty verdicts in other cases when the judges allow the same types of bad evidence before other juries. Unfortunately, unless those judges get verdicts overturned on appeal, they will continue to make bad rulings.
1 Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).