March 2009 - Won another reversal in Tyler Court of Appeals for 19-year-old man who burglarized cars in Tyler.  Police officer chased and caught him, slammed him to ground.  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.  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 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, ___ S.W.3d ____ No. 12-08-0009-CR (Tex. App. -- Tyler Mar. 25, 2009).

March 2009 - 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.

February 2009 - 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.

January 2009 - 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.

November 2008 - 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., ___ S.W.3d ___, No. 12-07-45-CR (Tex. App. -- Tyler Nov. 26, 2008).

July 2008 - Negotiated 8 year plea agreement for client facing possible life sentence and certain 15 - 20 year sentence.  Parolee with three prior burglary convictions facing at least second degree enhancement and possibility 25 years to life enhancement under Texas' three strikes law, stole inventory from company and sold on EBay under his own name.  When confronted, he signed two-page confession.  Quickly negotiated 8 year prison sentence which was less than 9 years exposure on his parole case.

July 2008 - Partial reversal 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 will lower client's sentence by 75 years.  Pyrrhic victory for client, however, who will still serve most or all of his life in prison.

July 2008 - Obtained dismissal of Class C misdemeanor assault charge against owner of RV park.

July 2008 - Obtained two-level reduction of federal sentence of client convicted of drug distribution, pursuant to new U.S. Sentencing Guideline reductions for crack cocaine.

June 2008 - New trial for longest serving 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.  Client will receive a new sentencing trial in early 2009, although efforts will be made to secure life sentence without parole.

May 2008 - Obtained notification of intent to parole 34-year-old convicted of abuse of elderly grandmother.  Client had drug and theft history.  Client will transition soon to half-way house before release.

March 2008 - Obtained technical dismissal of felony burglary of building charge against woman charged with removing discarded items from a home which she believed was for sale.

January 2008 - Obtained parole on first review for 30-year-old mother serving sentence for drug conviction, with transition to half-way house.

October 2007 - Obtained parole on first review for client sentenced to 10 years prison for felony DWI.  Client worked 35 years for local manufacturing plant.

August 2007 - Obtained dismissal of motion to revoke probation.  Client was highly paid employee of railroad, but on probation in law-and-order court for injury to a child with 9 years prison exposure.  State filed motion to revoke probation for alleged assault of girlfriend.  Worked with girlfriend to write non-prosecution affidavit and obtained dismissal motion to revoke.  A narrow escape.

July 2007 - Obtained dismissal of four class C misdemeanor charges of dog biting by client's pit bulls, which killed a neighbor's dog.

June 2007 - Obtained parole for gang member and drug distributor who cooperated with investigators.

June 2007 - Obtained dismissal of DWI against sales manager of local distributor driving company car.

May 2007 - Obtained mandamus to block arrest of elderly woman who had completed her sentence.  Law-and-order judge observed that client has 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.

January 2007 - Obtained parole for 25-year-old serving a five year sentence for marihuana possession and money laundering.

Click to learn more about lawyer James Volberding's criminal law services or contact his Tyler, Texas law office.