Criminal Law Results

Big Win in Tyler Court of Appeals for Wrongly Accused Bookkeeper

Client was a bookkeeper who prepared free tax returns for her boss’s relatives using TurboTax. One of the poorly educated relatives felt the refund was too small and filed a theft charge with a poorly trained Cherokee County Deputy, who failed to speak to a CPA to understand tax returns. The Cherokee County Attorney charged bookkeeper with filing a false U.S. tax return, long the sole jurisdiction of federal courts. Client was convicted and appealed. Tyler Court of Appeals properly held that theft statue does not cover U.S. tax returns and ordered acquittal. Client is relieved. Special credit to appellate genius Greg Smith of Ramey & Flock who edited briefs.

Reversal in Tyler Court of Appeals for 19-Year-Old Who Couldn't Breathe During Arrest

A police officer had chased and caught the client, slamming him to ground. The police officer did not realize that, by slamming client to the ground and kneeling on his back, the client could not breathe. On the verge of blacking out, the client bit the officer’s thumb, not to assault him, but to get the officer to let him up for air. The officer and his partners then gave client the Tyler treatment and took him to the hospital. Client was promptly indicted for aggravated assault of a police officer, a first degree felony. The client testified and explained that he did not mean to assault the officer by biting him, only to stay alive. At the request of the prosecutor, the Tyler trial judge, the Hon. Jack Skeen, refused the client’s attorney’s request for a simple and routine jury instruction on the law of necessity, which permits violating the law — here, biting an officer — for a vital reason — here, continuing to breathe. The jurors convicted and gave a 50-year sentence. The Tyler Court of Appeals reversed for a new trial, explaining that Texas has always permitted jury defense instructions when supported by even slight evidence. See State v. Juarez, No. 12-08-0009-CR (Tex. App. — Tyler Mar. 25, 2009).

Complete Acquittal on Appeal

Won complete acquittal on appeal in Tyler Court of Appeals for man convicted of three counts of misdemeanor harassment of neighbors by sending weird religious writings. Client denied sending the letters at all. Court agreed that the writings, while odd, did not convey any sort of threat and therefore could not satisfy the definition of harassment. Convictions vacated and dismissed. See State v. W., No. 12-07-45-CR (Tex. App. — Tyler Nov. 26, 2008).

New Trial for Longest Serving Texas Death Row Inmate

Client is Texas’ longest serving death row inmate, tried three times for 1975 Dallas robbery-murder. Client lost every stage of appeal following most recent 1992 trial. With appellate team led by three U.T. Law School professors, appealed to Fifth Circuit Court of Appeals on Penry jury instruction claims, lost, and then appealed in early 2007 to U.S. Supreme Court on petition for writ of certiorari. Court delayed execution, and in May 2007 reversed for reconsideration in light of two other recent Court decisions. Fifth Circuit reconsidered and reversed, ordering a new sentencing trial. Supreme Court rejected Texas Attorney General’s petition for certiorari.

Partial Reversal of Federal Drug Conviction by Fifth Circuit Court of Appeals

Partial reversal of federal drug conviction which will reduce client’s sentence by 75 years. Client prosecuted in federal court for drug conspiracy with weapon allegations. Client refused plea, was convicted of 21 counts, and received 150-year sentence. On appeal to Fifth Circuit Court of Appeals, argued insufficient evidence for all convictions. Fifth Circuit rejected most arguments, but found evidence of three gun counts insufficient and remanded for resentencing, which lowered client’s sentence by 75 years. Pyrrhic victory for client, however, who will still serve most or all of his life in prison.

Reduced Sentence for Federal Drug Distribution Charge

Obtained two-level reduction of federal sentence of client convicted of drug distribution, pursuant to new U.S. Sentencing Guideline reductions for crack cocaine.

Reduction of Over $20,000 in Restitution

Won reduction of more than $20,000 in restitution for parolee by contacting judge and obtaining revised final judgment, deleting restitution obligation as violative of existing Texas law.

Prevented New Arrest of Woman Who had Completed Probation

Obtained mandamus to block arrest of elderly woman who had completed her sentence. Law-and-order judge observed that client had served probation period for felony theft but, because of mistakes by probation department, had never been required to report for probation during entire probation period. Judge issued arrest warrant, notwithstanding that probation had expired. Filed mandamus with Tyler Court of Appeals which vacated arrest warrant.

Probation Revocation Win for Young Single Mother

Client was young single mother on probation for ID theft when arrested for WalMart shoplifting. Negotiated retention on probation in a conservative court by thinnest of margins.

Parole Win Before Texas Parole Board

Client was on parole for non-sex offense when parole officer sought to impose Condition X, the panoply of sex offender registration requirements. In contested hearing before Texas Parole Board member, convinced the member to deny imposition of Condition X.

Parole Win Before Texas Board of Pardons

Client was serving 15 years for manslaughter by shooting when client was fooling around with his pistol. Prepared and presented convincing parole package to Texas Board of Pardons, providing evidence of client’s near mental retardation. Client paroled on first review after serving mandatory 7.5 years.

Parole Win for Rehabilitated DWI Defendant

Client was white-collar worker on parole for felony DWI when charged with parole violation of driving without Interlock device. Convinced hearing officer and Parole Board to retain on parole.

Parole Win for Hispanic Man Lacking Legal U.S. Entry

Client was young Hispanic man lacking legal U.S. entry serving 6 years for drug possession. Obtained parole on first review, but could not prevent his deportation. Client is currently working and doing fine in Mexico.

Parole Win for Former Marine Who Sought Rehab

Client was former Marine was near completion of parole for robbery when charged with violating parole by using drugs and leaving the state for rehab. Prepared favorable package to senior TDCJ official. TDCJ chose to allow client to remain on parole until expiration.

Parole Win for Man Serving Time for Burglary

Client was serving 7 years for burglary. Obtaine parole on first review with compelling presentation of work history and employment skills.

Parole Win for Client Who Served Time for Assault of Police Officer

Client, 35, sentenced to three years in prison for revocation of probation on assault of police officer case. Filed thick parole package and interviewed by phone with first voting board member. Client was released.

Partial Parole Win for Rehabilitated Sex Offender

Client was middle-aged man on long parole for sex offense when charged with 7 parole violations. After considerable preparation and contested revocation hearing, convinced the hearing officer to find several allegations unsubstantiated. Board revoked parole on two remaining violations and sentenced to 120-days ISF instead of sending back to prison as demanded by his parole officer.

Parole Win After Two Years for Man Convicted of Theft

Won parole for client sentenced to 10 years for theft by check of aunt’s funds. He was permitted parole, with restrictions, after serving two years. Presented parole package to Board with support letters, including affidavits from aunt that she never wanted him in prison and had given permission to cash the checks.

Parole Win on First Review for Woman Convicted of $200,000 Theft

Won parole on first review for 62-year-old woman sentenced to 10 years for stealing $200,000 from employer. Presented parole package with many character statements, and explained lack of criminal history and good behavior. Argued case in phone presentation to first voting member.


Learn more about attorney James Volberding's criminal law services or contact his Tyler, Texas, law office.

The outcomes described on this website accurately represent selected matters handled by the Volberding Law Firm. The success of any lawsuit or settlement depends on the unique circumstances of each case. The Volberding Law Firm cannot guarantee future results based on past successes we have achieved for our clients.