State v. Barber and the Limits of Warrantless DWI Arrests in Texas
State v. Barber and the Limits of Warrantless DWI Arrests in Texas
A recent Texas Court of Criminal Appeals opinion may provide criminal defense attorneys with a new tool when challenging certain DWI arrests.
In Episode XX of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker discussed State v. Barber, a 2026 decision addressing a fundamental question: Can an officer make a warrantless DWI arrest when the officer never actually witnessed the offense?
The Facts Behind State v. Barber
According to the Court's opinion, an officer arrived at the scene of a crash approximately 40 minutes after the incident occurred. Through witness interviews and a subsequent investigation, the officer developed probable cause to believe the defendant had been driving while intoxicated.
The officer ultimately arrested the defendant without a warrant.
The question before the Court was whether the DWI offense had occurred within the officer's "presence or view," a requirement that often governs warrantless misdemeanor arrests in Texas.
What the Court Held
The Court of Criminal Appeals held that an offense is not committed within an officer's presence or view merely because the officer later reconstructs what happened through an investigation.
In other words, probable cause developed after the fact is not the same thing as personally observing the offense.
The distinction is important.
An officer may be able to prove that a person committed DWI. However, proving a crime occurred is different from satisfying the statutory requirements necessary to make a warrantless arrest.
Why This Matters
For decades, many DWI arrests have followed a familiar pattern:
Officer arrives after a crash
Witnesses identify the driver
Officer observes signs of intoxication
Officer makes a warrantless arrest
After Barber, defense attorneys should closely examine whether the officer actually observed the offense or merely reconstructed events after arriving on scene.
If the arrest does not satisfy Chapter 14 of the Texas Code of Criminal Procedure, suppression issues may arise.
A Reminder About Probable Cause
One of the recurring themes of the podcast is that probable cause is a relatively low legal standard.
An officer does not need proof beyond a reasonable doubt to make an arrest.
However, Barber demonstrates that probable cause alone is not always enough.
Even when probable cause exists, officers must still comply with statutory arrest requirements.
Beyond DWI Cases
Although Barber specifically involved a DWI arrest, the reasoning may have broader implications in future litigation involving warrantless misdemeanor arrests.
Defense attorneys should carefully analyze:
Whether the offense occurred within the officer's presence or view
Whether another Chapter 14 exception applies
Whether a warrant could have been obtained
Whether any evidence obtained after arrest should be suppressed
Final Thoughts
State v. Barber is still a very recent opinion, and Texas courts will continue defining its practical limits in future cases.
Nevertheless, the decision serves as an important reminder that constitutional protections and statutory safeguards still matter. Officers may develop probable cause through investigation, but probable cause alone does not eliminate the requirement that an arrest comply with Texas law.
For defense attorneys handling DWI cases, Barber is a case worth reading and preserving for future motions to suppress.
If you have questions about DWI defense, warrantless arrests, or criminal procedure in Texas, contact Herreth Law for a consultation.
Andrew Herreth 0:05
Hello, ladies and gentlemen. Welcome to another episode of Andrew and Andrew on Texas Criminal Defense. My name is Andrew Herreth, and as always, joining me, the one, the only, the uber powerful Andrew Decker. How are you, sir?
Andrew Decker 0:20
Wow, you just, just can go. Andrew Decker, just next
Andrew Herreth 0:23
time I just do that. Okay,
Andrew Decker 0:25
yeah, yeah, it's fine. It's fine, because that no one believes the puffery.
Andrew Herreth 0:30
No, I mean, it is. It's just I'm trying to relay to the audience just how intellectually powerful you are.
Andrew Decker 0:41
We'll just say that the smart
Andrew Herreth 0:44
this, okay? I'll, I'll, between the two of us, play it down a little bit.
Andrew Decker 0:48
Between the two of us, we could say we're smart and good looking.
Andrew Herreth 0:51
It's a radio show, nobody's gonna be able to verify that, right? It's like, if they've listened to us, they know that we're not smart.
Andrew Decker 1:01
Well, and who's the Silver Fox of Parker County? We found we found out it is the other Andrew, and
Andrew Herreth 1:07
yeah, no longer.
Andrew Decker 1:09
Yeah, yeah, now you're not even there, but no one's called me that since you've left. So,
Andrew Herreth 1:13
well, I think I think we've gotten, I think we got some pretty good feedback from our, our return show, first first show back in a while. Yeah, we actually had a question.
Andrew Herreth 1:28
We had somebody email out a question, and you and I didn't really know the answer off the top of our heads, so we were like, why don't we just talk about this,
Andrew Decker 1:36
but, but let's, so Joe Cole out of our kind of the North Texas region, Wichita, Wichita County.
Andrew Herreth 1:49
Yep, I believe he's emailed a couple times or contacted the show before, but emailed us with a pretty good question on, you know, what happens to your client's good time credit or backtime credit if the case is dismissed for no probable cause, but the state proceeds to get an indictment anyways, and now the case is proceeding under a different warrant number.
Andrew Decker 2:19
Yeah, great question. Great follow-up question to our show last time. So, thanks for listening, and thanks for asking good questions. He should be an attorney.
Andrew Herreth 2:29
Yeah, well, it sounds like it's pretty good attorney.
Andrew Decker 2:31
Yeah, sounds like it. So, generally, the general rule, obviously, is that anytime you serve, you should get credit for right, and it's one of the things that I'm honestly amazed, you know, it's a question that gets asked every time by our defend. Am I going to get all my back time? Am I going to get, you know, all my time? I'm amazed in some counties where they put that number on the judgment, and the, and the client can see it. I would say nine times out of 10 the client goes, I didn't think I had that many days.
Andrew Herreth 3:06
Yeah,
Andrew Decker 3:08
they're surprised how much credit they're getting.
Andrew Herreth 3:10
Yeah, the number, the number, a lot of the times is like bigger than they're expecting. And, man, I just got.. I think it's just the days in jail just kind of run together.
Andrew Decker 3:20
Well, or they did a little bit of time here, and they did a day or two there, and then they, you know, it's, it may not be all continuous, so they think it's like just the 30 days they've been here since they blew up their bond, and they really do get those 10 days they waited, and then they got arrested into their county, but nobody picked them up, but it was on this warranted track, you know, and so they end up picking up, you know, 30 days, and so they get 65 instead of 30. I'm amazed how often they're surprised to the good, to the good, and it's my way of, I remind them the judges in the court really do at this point want to give you every day you've earned
Andrew Herreth 4:00
well, and Kodachrome procedure, article 4203 section two A says they get it, you're entitled to all that time, right? I don't know specifically in mr. Cole's question or in his fact pattern how, how difficult it'll be to convince a judge to give him that back time, I would assume this is, I mean, it doesn't, 42 or three doesn't specifically speak to well, in the instance where the case is dismissed for an OPC, but later indicted, I mean, and that's the same case, I think, I think that the defendant is entitled to every day they spend in jail on this case, on this incident, right? They have the same incident number, the same incident date, they should have the same like event cycle, regardless of warrant number in the TCIC and NCIC. So I think I think it's a pretty big no-brainer, like, yeah, you get all the time that you. Been in, ultimately, I mean, how many times have you been practicing in, like, all these different counties? Decker, and every judge treats backtime credit differently. Some will give you double the days that you spend in, some will give you three for one, some will give you, you know what I mean, like it's
Andrew Decker 5:21
okay, so it depends on the level of the offense, but yeah, yeah, yeah, let's say that we're pleading out a misdemeanor on a jail run. Some of them will give you the two for one, or even the three for one of the time you've served. There are some smaller counties where they go, well, that now goes into effect now that you pled guilty, and so
Andrew Herreth 5:39
right, the 10
Andrew Decker 5:39
days you've been waiting, you do 10, and then the next day after you plea, then you start getting the two for one or three for one, but even that's not guaranteed, right? And so it's so, so the caveat on that is it only the sheriff can count the days on a misdemeanor, only parole, the parole board can count the days on a felony. The judge or the clerk really only gives you the days you have earned prior to the plea, and on a felony, I don't, I don't think they can give you the two for one, the three for one. I don't think you can give, do that to the back, right on a felony. So that may be where some of these smaller county judges kind of go, well, they don't do it in the big, big room across the hall. You're right, but that's a completely different world,
Andrew Herreth 6:29
right? Yeah, and sometimes you know when parole is looking at a number, they'll just give you four for one. I mean, it just kind of, they operate on their own like calculation of that, but, but you, you should like the question. The argument to the court is, Judge, my clients entitled this time under 4203 section two A. The, and, and I, and I think you get it from the, from the date that you're arrested the first time, regardless of what happens procedurally in the case, you know, if you're let out and then you're rearrested, but it's the same case, same incident number, you know, or same incident date, like, but
Andrew Decker 7:10
they may not automatically receive that, so, so this is where, ladies and gentlemen, you're, you're going to want to know how much time they did under the first warrant number, and then how much time they did under this new warrant number, and and be able to present that I was in a, I was in a court just this week, plea in a guy, the original police said 209 days. Well, I would, because it was, it was in a county, and I could see the county that he came from, I had access to that, I looked up his jail record there, and I could quickly prove 465 days, and the guy didn't blink an eye that he might have more than that. He said, "Yes, please, if you can get him to 465. When I showed it to the to the prosecutor, all they did was look to see where the transfer came from. They saw it came from the other other county, and they said, "All right, we'll change it to 465. It's a 25 year sentence, but it's still an extra 206 256 days. That's a big difference. It makes it.. it'll make some time difference at the end when he is actually eligible for, well,
Andrew Herreth 8:21
heck yeah, that's the better part of a year,
Andrew Decker 8:24
yeah, right,
Andrew Herreth 8:24
yeah, yeah, you know, I think most prosecutors, misdemeanor and felony, you know, I know we've had, we talk about, we have some horror stories that we talk about, but I think most of them are realizing this is just administrative, and if, like, the numbers on the piece of paper, the dates on the piece of paper, you know, you can, you're, you're getting that time, and if Puss comes to shove, just go to your judge, and hopefully the judge will listen to reason and say, like, yeah, that's, you know, the code says this, we can prove from this date that they were in custody, should be a no-brainer, should be like, should be the easiest, the easiest, the easiest dispute to solve for that court that day,
Andrew Decker 9:10
right. So, so I've already, I told you this before we started recording, I'm going to give a shout out to a retired judge, Judge Wish, he's not my favorite, honestly. So, so this is, you know, you got to give them credit where credit's due. I had a, I had a young lady who had been booked in in another county, eventually bonded out there, I believe, but she was standing and was offered like a 1244 a for like 90 days, and she goes, mr. trigger, I was, I was arrested on this warrant and something else in Johnson County. I got dismissed on the, or the misdemeanor finished there, and then I came here, and she goes, there's more days, but we, nobody could see the days in Johnson County quickly and easily, and I said that to the judge, I was like, hey, she, she may have enough time served. And Judge Wish said, "Have her come to the bench, I'm going to swear in, and that's what I'm going to ask her, and he told me, and so I was like, "Okay, and I went and told her, and she said, "Yes. So she comes to the bench, he swears her in, and he reminds her, he said, "I'm going to ask you a question about how many days you served in Johnson County, you give me an answer, and it's true. I'm going to give you credit for that on this manner, because it happened after this original, the original rest she bonded out. Then she did this, mr. Mayor, Johnson County, blah blah blah, and he said, "But I remind you, if I find out that the answer is incorrect, you will have committed perjury in this court, and then I become a witness in your next case, and it just sat there, and she goes, "Yes, sir, and he asked her for the number, and I think it was like 63 or 79 or something, you know, it wasn't, but it was enough that when you add it all up, and he goes, "Well, then I'm going to grant you credit time served on the 90 days, 1244 a and I hope I never have to see you again. And she goes, yes, sir, Judge. Thank you very much. Right, but he swore in, he told her the consequences, he gave, she gave the number that she had given me every time we talked, so why would you know? I don't know, but I was like, what a, what a judicious right, there were some, you know, judicious way of handling this question of if you're willing to put it on the record, knowing that if you, if you, if you, if I find out you lied, you lied to me under oath, I will be able to like
Andrew Herreth 11:36
verify, also, yeah,
Andrew Decker 11:38
yeah, yeah, so, but Judge, she walked out the back door, having finished her, having finished her case. So, it was.. it is amazing how quickly and easily sometimes those things work.
Andrew Herreth 11:56
Yeah, yeah. So, you know, these are these are interesting questions that we receive, like it's because it's, you know, we, we talk about backtime credit daily, but I mean, you can't discuss resolving a case without talking backtime credit, but it's these like little nuanced questions that just kind of make us think, like, well, yeah, I think, I think the answer is yes, but do I actually know for sure?
Andrew Decker 12:25
Right,
Andrew Herreth 12:25
how would I? I just know how I would argue it, you know. Yeah, I think
Andrew Decker 12:28
you, I think you got to have the jail record, you got to show that it's the same event, and you present it to the judge.
Andrew Herreth 12:35
Yeah,
Andrew Decker 12:35
every judge I know would give you those, those days. I mean, it's a
Andrew Herreth 12:39
no-brainer to me, but you know, most things are a no-brainer to me before, because you're the
Andrew Decker 12:46
pretty face on the podcast.
Andrew Herreth 12:48
So, but good question, mr. Cole. We really appreciate your efforts up there in North Texas. Keep fighting the good fight. I, I think you know, I think this is going to be kind of like, hey, let's just answer some general questions, so we,
Andrew Decker 13:06
yeah, so we had another question, a Brady question about a specific person, we're not going to rat anybody out, but we said, hey, you know, let's talk a little bit about Brady violations, have you ever had one, mr. Herreth? Not you, but have you seen one where you went? I
Andrew Herreth 13:27
mean, I was a prosecutor, so I imagine I, you know, maybe I, maybe I have violated Brady in some way, even though I've tried, tried really hard not to. That's a good.. we have had this issue brought up locally in Harris County recently, kind of the listservs were a buzz about a case where the defense attorneys did a great job of knowing their file front and back, and when something was presented to the court, or that there was testimony regarding a piece of evidence, think it was a video file, like, well, yeah, it's on this video file, and the prosecutor, and, well, the defense attorney stands up and is like, we've asked for this video file, who did you give this video file to? Oh, we gave it to the prosecutor, when did you do that? Well, it's in my notes, I gave this video file over to the prosecutor on whatever day months ago, and they're like, oh, that's funny. We've requested this after that. The prosecutor supposedly received it on such and such day by email. Here's this email, and then, like, oh, it turned into a circus, like, big time. So it is, you know, we have had Jason Nee House on the show, who argued Watson, fantastic lawyer, you would think that it has been hammered into the prosecution enough that that we would not have these issues anymore, and
Andrew Decker 14:52
since, and since then, we've had Heath, which says, you know, both these things say really and. Everything that might come into trial has to be turned over, and 3914 says anything that could be mitigating, exculpatory, or used for punishment has to be turned over. I mean, it's, it's really very broad, so some of that's beyond actually 3914 is beyond the have a 3914 violation and not be a Brady violation, yeah, but but both of those are so huge, but let me, let me play, so let me, let me, let me play devil's advocate. Okay, part of the state. Yeah, I think the difference is was it we didn't know it existed, we missed it somewhere, like one we just didn't know that there was another officer on scene, and had pictures that we didn't know existed. Was it that we missed it? Truly, like that, there's so much data coming in that we, we, we as the state didn't see this piece come in, or was it a they're going to need this, and we're not giving it to them, right? Is it mistake by this by the law enforcement not really producing everything? Is it mistake by the DA missing something they should have turned over, or was it semi-calculated? We didn't turn it over, and we knew we should have. Those are, in my mind, very different creatures.
Andrew Herreth 16:54
Yeah, I mean they are, and I think the law accounts for that, right? Like one just a mistake, okay. But that's fine, still a Brady violation, and so the client is entitled to either, you know, maybe a mistrial, maybe you know, having a having the state's file reviewed in camera to make sure that everything's been turned over to the prosecution, I mean to the defense, but like, you know, if it's a willful Brady violation, where they knew about it, they purposely, you know, what I mean, like, there have been lawyers who have lost their bar card, who have been disbarred because of these Brady violations. Some very powerful prosecutors over the years have done that, you know, have been disbarred, so, so, yeah, I mean, I, you know, I think the law kind of accounts for, for all that, frankly, like, you know, I get, I get that sometimes being a prosecutor can be a difficult job, you're, you're like herding cats with the amount of like agencies that you have to cover, and sometimes these agencies get in a little piss and match with the DA's office? They don't want to turn over their discovery in a timely manner, whatever the case may be. Like, ultimately, that doesn't really matter if you're looking at just it by case by case basis, you know. Brady is Brady, Watson says what Watson says, you must turn over everything that is material to the to the case to your case in chief, so if there's a violation, doesn't really matter how, like I mean it matters to, I guess, if there's going to be like personal repercussions against that prosecutor, but, but to the case itself, no. I mean, that it's pretty clear. You either proceed without that information, it's a mistrial if you're in trial, you know. Case dismissed. If it's, if it's, you know, what I forget, I lost my train of thought, but it's, you know, the case can be dismissed if there's, you know, what I'm trying to say, yeah, we're unlawful prosecution, like the prosecutor is just like being heavy handed, anyways, that's not a legal term, don't quote me on that,
Andrew Decker 19:15
yeah, but, but I, so, so part of what I had a little bit of conversation at lunch with some other attorneys regarding this question. Remember that you know Michael Morton, the 3914 he was released from prison. It's now been 15 years ago. It was in 2011 Another man was convicted of that murder in 2013 Ken Anderson, the prosecutor, the prosecutor in the Michael Morton case was sentenced to prison for contempt of court from withholding evidence, but that doesn't become the law until what, 2012 2013 2014 sorry. It, yeah, 12, 1314, so even that's been 1213 years, so you really have a whole generation of prosecutors who have kind of moved beyond that, and I think for the first few years they were terrified of the Michael Morton Act, and now they've, they, that, and Brady have kind of gone back to, we try, but we kind of gloss over the question fairly quickly, and it's why I think some, some prosecutors have been found to have violated Michael Morton, maybe even Brady, and are still sitting in their offices, like a few that we, we talked about before, and again, my our job is not to roast a prosecutor here on the so you
Andrew Herreth 20:53
think like the essentially like their hair is not on fire anymore about about Brady, it's just kind of like died down, and you know, they're not as like diligent on it. I could see that,
Andrew Decker 21:04
right? It's kind of like it's kind of like when your doctor tells you to cut the sugar out of your diet for diabetes for the first week, you're like, "Man, I don't.. I wouldn't even look at a donut. By a week later, you're starting to have a Coke again, and within, you know, three or four months, you need to start taking insulin, because you haven't been watching your diabetes, I think the same thing is a human nature, that hair on that hair on fire. We're going to make sure it's right, we're going to make sure we protect it. And then it becomes.. and then you go, well, it's not that big of a deal, and so you're back to eating donuts purposefully or accidentally.
Andrew Herreth 21:40
Yeah, I, you know, they're for the majority, like this, this case that I was talking about, you know, that's like one, maybe two prosecutors in an office of
Andrew Decker 21:52
right
Andrew Herreth 21:53
300
Andrew Decker 21:54
yeah,
Andrew Herreth 21:54
you know, like we hear about those individuals who shouldn't be prosecutors, like for the most part, I've worked with prosecutors who have been very open about, you know, getting me the evidence that I need, even if it's like, you know, there could have been some times, a lot of times when they could have said, "Hey, man, you have subpoena power, you go get this stuff, and I'm like, "Okay, fine, I mean, I will, but it's easier for you because you're law enforcement to get social media posts, or whatever the case may be. But for the most part, like prosecutors, you know, I can't believe I'm saying this. I think they want to do the right thing.
Andrew Decker 22:41
I think on the on the most part they do I think on the most part right, and that's why I'm saying there's got to be some account of some some we are humans doing the best we can with the vast amounts of information, the vast speed of cases, the overwhelming information, sometimes all we can do is just hope to get through it,
Andrew Herreth 23:04
hope to get through it, and just keep continuing to read cases coming out of the Court of Criminal Appeals. Tell you that much.
Andrew Decker 23:12
Yeah, what about that?
Andrew Herreth 23:13
There's some gold to be mined there.
Andrew Decker 23:16
There's some not rare, not very, not usually, usually no, usually it's like just kick in the butt,
Andrew Herreth 23:23
yeah, not for us. Usually, usually defense attorneys are not benefiting from a CCA opinion,
Andrew Decker 23:30
right? But occasionally, right. So we talked about probable cause again. We're building on the last episode, we talked about probable cause, that it really doesn't take very much to get arrested, it's less than 5050 Just because you've been arrested doesn't mean they can prove the case, doesn't mean that you're going to be found guilty.
Andrew Herreth 23:47
Yeah,
Andrew Decker 23:47
now lots of times you're being arrested because, girl, you're guilty, you know,
Andrew Herreth 23:51
right?
Andrew Decker 23:52
It's going, you know, we know that. But an interesting case was shared with me by a colleague in Parker County, Tiffany Fowler sent this to me. She goes, "Andrew, would you read this and make sure I understand it correctly?
Andrew Herreth 24:10
Tiffany Fowler, smart as a whip attorney up there in Parker County.
Andrew Decker 24:15
Yeah, so this case just came out of the Court of Criminal Appeals in April of 2026 so we're pretty timely. It's just two months, I mean, truly less than two months from when it was released. The case is for those of you playing at home, Estate v Barber. It is a brand new case out of the court of criminal puzzles. See if I give you a site. It doesn't even have the official site yet. Yeah, I don't think it's
Andrew Herreth 24:40
been published yet, but it will be. It's just because it's like says
Andrew Decker 24:45
notice, notice publish. So, yes, it has not been published yet, but it will be. So I'm going to give you kind of the brief overview that the an officer arrives at the scene of a crash 40 minutes after. An incident interviews witnesses, no evidence observing the defendant or any ongoing offense, right, and he arrests the person for an on-view offense of DWI, and it actually ends up becoming a vehicular homicide DWI, so so, what? Well, we've seen DWI arrests all the time, especially at the scene. Yeah, crash,
Andrew Herreth 25:34
right? Right, you know, and an officer pulls up, maybe it doesn't even see the crash, but just pulls up to a crash after it occurs, but can piece together, you know, wheeling the driver and all that kind of stuff. This is an interesting, like, reading this case is interesting, thinking about an officer pulling up to a crash scene, because I think this calls into question the procedure the officer must make, must take going forward, right? Be if they did not, so the question here is before the court, can an officer claim an offense occurred within his presence or view when the officer did not personally witness the offense, but developed probable cause through a post incident investigation. That, that to me, you know, I mean, can is it within your presence or view when it's not actually within your presence or view? I mean, come on, that's an easy question to answer, right? Uh they, the court held. Correct me if I'm wrong, mr. Decker, the offense is not committed within an officer's presence or view merely because the officer later develops PC through an investigation.
Andrew Decker 27:00
Correct,
Andrew Herreth 27:01
the statutory phrase requires actual observation, not reconstructed knowledge after the fact. So, okay, so big whoop. What does that mean?
Andrew Decker 27:12
So it means that it's well, in this case, accident occurred 40 minutes before. There's not even anything really in the record on whether the person who was later arrested for DWI was on scene, but the warrant is he's later arrested at the hospital. They're saying that's not on view. The officer didn't see this right. On view means I saw it. I was on the scene, and the offense was committed in my presence, or in my view. Basically, the officer is a witness to the act,
Andrew Herreth 27:51
right?
Andrew Decker 27:51
Because, and you know, thank goodness for Lexis Code of criminal procedure article 1403 says an officer may arrest without a warrant if a person's found in suspicious place. Basically, it's kind of a Terry, and under circumstances which would reasonably leave a person had committed a felony. That's a Terry search, right? A Terry frisk, and that can that can lead to a breach of the piece, and could be an offense, a person who the officer has probable cause to believe has committed an awesome an assault resulting in body injury to another person, and believes there's an ongoing danger of further injury. In other words, they should, they show up to a fight and the guy is still huffy, even though the officer didn't see it. I can arrest, even if it's at a bar or it's not at a bar, if it's at the park, and then obviously the third one is has probably causally believe an offense has been committed under section 2507 which if we turn our handy dandy code, we find the code of criminal procedure 2507 would be family violence, family violence, abuse of children, violation of court orders, kind of deal. So, so there's there are some ways to make it happen, but DWI is an on view offense that it has to be on view, right? Right. So you do then kind of wonder on things like theft from Walmart, right?
Andrew Herreth 29:31
Yeah, yeah. How a theft from Walmart, I mean, you know, those those cases are so damn ridiculous, anyways. They should be getting summons to court, but that from Walmart, assault family violence, if like the person's not there on scene, because you do have to worry about ongoing threat from chapter 14, I. So you know, I mean, so how is this? How do you think this is going to change going forward?
Andrew Decker 30:09
So, how an
Andrew Herreth 30:10
officer like what an officer does when they arrive on scene.
Andrew Decker 30:15
So, again, if we stick to the narrow, it has to be a DWI, right? I've had a case where the when the officer shows up, the lady's out of the car, sitting on the sitting on the stoop in front of the QuikTrip, and they arrest her and then draw blood to find out that she's got methamphetamine in her system, do well, I don't know that that arrest works, because I'm watching a video to prove that she drove. Well, that's not on view. That's get a get a warrant, go get a warrant. You might be able to arrest for public intox, and then later build it, but you got to get a warrant. You've got to have a judge look at it, get a warrant, and arrest her for DWI, not do an on-view arrest. I think on that case I have one currently where again she's at a convenience store, the officer pulls up and notices a car with a door open, and then sees a woman stagger out of the convenience store and ends up risking her for a DWI. I don't know that that works,
Andrew Herreth 31:27
right? Right? No, yeah, I mean, you just have to get, you know, when in doubt, go talk with a judge with a warrant, you know, there's in most jurisdictions you're gonna have a judge on call available
Andrew Decker 31:45
2024 hours a day,
Andrew Herreth 31:47
yeah. And, and then you know, I don't know, and that just seems like a no-brainer. And warrants are so super easy to put together, most of the officers are just copying and pasting anyways, so like I, the good news I think for us is I don't think officers are going to change what they do from this,
Andrew Decker 32:10
yeah, not until, not until their, their local county attorney or district attorney goes, "We've now lost three cases because you didn't do what you're supposed to do under this new new rule, right? You know, it's kind of like the it took a while for implied consent to really stick in the heads of officers, that was the idea that you, you imply consent to draw my blood for a DWI, just because I've signed a license, they've said no, that's not that's not implied consent, that doesn't apply. I think this is going to be kind of the same, but it for those persons it could buy enough time for them, you know, I've got to go get a warrant to make the arrest, and then make the arrest. Now, if I'm, if I'm doing it, I'm taking both a warrant for the arrest and a search warrant to the, you know, to get, you know, it's not like you're going to go make the arrest and then go get the search warrant. Why? Because if I'm really trying to find out that they're intoxicated. I want that as fresh as possible. I don't want it dissipating over time, but
Andrew Herreth 33:26
yeah,
Andrew Decker 33:27
it's a hurdle, it's a jump, and it's fresh, fresh new case law. So, thank you to, we'll give a shout out to Tiffany Fowler again for that great work she's provided to us. So,
Andrew Herreth 33:40
is it, is a good, a really good, it could be potentially a powerful piece of case law for defenders. Yeah, yeah, it's not gonna
Andrew Decker 33:52
hurt us any.
Andrew Herreth 33:54
No, I mean, hallelujah,
Andrew Decker 33:57
yeah, cuz so often it's like that's harmless hair, no, that's fine,
Andrew Herreth 34:00
exactly. Oh,
Andrew Decker 34:00
they can do that. Yeah,
Andrew Herreth 34:06
exactly, exactly. Probable
Andrew Decker 34:08
cause, remember, ladies and gentlemen, is very, very low. It is very low. It is just really, yeah, they might have committed an offense, and I can give you two or three reasons why I believe it to be true. That's it, that's all it takes, right?
Andrew Herreth 34:25
Yeah, yeah, it does not take much. It's not a very high bar to get arrested.
Andrew Decker 34:30
No,
Andrew Herreth 34:31
not at all. Oh, no, no, no. Same, same level, same amount,
Andrew Decker 34:36
right? So,
Andrew Herreth 34:37
yeah, I think I think it's interesting talking to people who've, like, never been through the system before, and they get arrested, and they're just, like, shocked at just how unfair the process can be, or feel, you know, and it's so, hopefully, hopefully our listener. Never have to go through that process. Hopefully, you know we're just talking with defenders who you know who see it on the other side, but man, I.. it's just.. it's just shocks me sometimes. Where I'm like, you got you guys got arrested, you arrested somebody for this, that's like.. that's so weak. Yeah,
Andrew Decker 35:19
yeah. Well, and when you have just in the last couple of months, I've had a two business owners, credible, you know, they are not these are not troublemaking people, both arrested on thankfully misdemeanors. One originally we thought it was going to be greater than that, and when they bonded out, they bonded out on a misdemeanor. I was like, that's already a huge win, and he goes, I don't feel like that's a win. I'm like, it's down from a aggravated assault with a deadly weapon to a deadly conduct to, uh, to a disorderly conduct discharging a firearm. I was like, huge win. We have art, we already had a huge win.
Andrew Herreth 36:01
Damn right,
Andrew Decker 36:01
but, but you have two business owners, middle-aged men, who are like, what do you mean? I, you know, they're just, they're locked up and terrified, and I'm like, yeah, it doesn't take a whole lot, it doesn't take a whole lot. In one case, the other person didn't even want them to, didn't even want them arrested, and I was like, yeah, but the police got called, they're now involved, they get to arrest somebody, yeah, and sometimes that's as little as it takes, really, they're they're there now to mediate, and they don't mediate, they arrest, and feel like their job is done. The other one followed advice of counsel, right, because it's in the middle of a custody dispute, and an in-law said, "You're not welcome to come to my house, and he comes and knocks on the door and says, "I want to see the kids arrested him for criminal trespass. Yeah,
Andrew Herreth 37:09
it's crazy world out there,
Andrew Decker 37:11
and terrifying, right? I mean, imagine being a parent, being told not by your spouse, your former spouse, or by a judge, but by some old man, don't come to my house looking for your grandkids, and you just come and knock on the door. It doesn't do anything illegal, just knocks on the door, arrested for criminal trespass.
Andrew Herreth 37:32
Yeah, that's stupid, that's
Andrew Decker 37:34
right. Well, and terrifying, right? Because that'll be used against them in a family court if it ends up being,
Andrew Herreth 37:40
yeah,
Andrew Decker 37:40
you know, I so,
Andrew Herreth 37:44
man,
Andrew Decker 37:45
it's really exciting
Andrew Herreth 37:46
coming up.
Andrew Decker 37:48
No,
Andrew Herreth 37:51
yeah, I've got, I've got a trial where now I'm like, after reading Barber, now I'm like, oh, okay, maybe I have something here after all, and so I'm gonna have to reread chapter 14, and, and the facts of this case, I mean, it's a, it's a silly family violence case that I don't think is really going to go anywhere, but, but yeah, I, I'm looking forward to that, I'm looking forward to this to this trial coming up.
Andrew Decker 38:23
I'll trade you, I'll trade you a family violence for a case that we are just under an hour two weeks before trial, and it got reindicted yesterday as a continuous sexual child. So we're up. I'm not going
Andrew Herreth 38:39
to trade you my two day trial for your like minimum seven day trial,
Andrew Decker 38:46
we went, we went from a two to 20 offense to 25 to 99 in life with no possibility of parole, and I've, I've already told the judge I'm probably going to file a motion to continue on Monday or Tuesday of next week, because it may have, it will probably change my trial strategy. At the very least, I'm at the very least, I've got to at least try to cut one of them off completely, right? Maybe I can, maybe I can show that this one's impossible, even if they prove the other one, but I might, but I didn't know that I was going to have to do that before, and again, ladies and gentlemen, continuous sexual, sexual abuse of a child. The only offense greater in the state of Texas as a first offense is capital murder. So it's like I just went from second degree felony to, to a, in a sense, a kind of a mini mini cap,
Andrew Herreth 39:41
yeah, capital, yeah.
Andrew Decker 39:42
You know, I've got a well, it puts more pressure on me, and I feel like I'm now under prepared, where I thought I was like adequately prepared. It's just you tighten up in a way that you didn't tighten up before, yeah. So, no, it's not fun. I'm really stressed out that. Herreth,
Andrew Herreth 40:00
yeah. Well, Godspeed to you, sir.
Andrew Decker 40:05
Yeah, thank you. And to into my client that swears he didn't do it. And in this one, it's one where I don't know, right? I'm not the guy that tries to go, 'Well, I know my guy didn't do it, or 'I think he did do it. I'm like, 'What can they prove? Well, it's one girl's testimony against your testimony. Jurors tend to believe those girls. It sucks. So,
Andrew Herreth 40:30
yeah, that does suck. Anyway, I don't, I don't envy you, sir.
Andrew Decker 40:37
Well, you should envy me, not on that,
Andrew Herreth 40:42
not, not at least not for that,
Andrew Decker 40:44
not for that, not for that. Oh, you have anything exciting coming up, mr. Herreth?
Andrew Herreth 40:48
Just my, just that assault family violence case, that's it. It'll be, it'll be short and sweet, and hopefully my guy gets a.. I mean, he's been in custody for so long, but hopefully he just.. it gets a pretty quick not guilty, or, or guilty on a misdemeanor, that's what we're going for.
Andrew Decker 41:04
Yeah, of course. So we often talk about music we're listening to, or books we've read. If we have guests, we ask these questions. Well, I've got, I've got some new music that, and a book that, a book that I've read. So, for those of you who are classically minded, this is a classically minded question. Let me see if I can find it. Truly, this is an amazing piece that we just did at Easter, and I can't find it. Dang it, it's a new, it's a new requiem that is just amazing, I can't find it, and I lost the name, and but I'll find it for the next time, but in the, in the meantime, if you, if you want to hear something that's amazing, John Rutter is an English composer, he did a retake, a new take about 20 years ago on Be Thou My Vision, that is hauntingly beautiful, saying that as well, played it for my mom, and my mom said she had chills when she heard it, and then I just finished a book called Leadership by the same author who wrote Lincoln and has done some others, Pulitzer Prize winner, I lose the name of her, but just great information on four presidents: LBJ, FDR, Teddy Roosevelt, and Abraham Lincoln, and how they rose to the moment, how they rose into leadership, and then how they rose to the moment in crucial times of leadership, taking kind of beyond the bounds of what would be normally expected of their role at the time they did it. Incredible book. I will send Andy the link on the book, that's cool, and next time I'll find you the music, just blanked out.
Andrew Herreth 43:26
Yeah,
Andrew Decker 43:26
so anyway, you have anything new you've read, or music you want us to listen to?
Andrew Herreth 43:31
Flea has a jazz album out, Flea, the basis for the Red Hot Chili Peppers. Put out, I've seen the album, it's incredible. It's incredible. Go and get
Andrew Decker 43:42
it. I'll have to listen.
Andrew Herreth 43:43
Yeah, that's about it.
Andrew Decker 43:46
All right. Well, hey, nothing gave stuff. We gave stuff, even if you don't get anything from the law, you got something from us, musically and literary, litter, literary. So be sure to reach out to us. Obviously, we like your questions. If you have a story, if you have a question, if you have a topic, please reach out to us. You can find us both online. You can find us at Texas Crim defense.com You can find us on Facebook. You can just Google Andrew Herreth or Andrew Decker. And for Andrew Hereth, I'm Andrew Decker. And for Andrew Decker, I'm Andrew Herreth. Y'all be good,