Significant Cases

1.              Collier v. Poe (Texas Court of Criminal Appeals, En Banc)

                David Bires was hired by Collier who was charged in the 228th District Court with attempted murder and aggravated assault for shooting his estranged wife and his step-daughter during a gun battle at their home.  Collier had also been shot by his wife.  Collier was indicted on October 10, 1986.  In keeping with his “rocket docket”, Judge Poe set the cases for trial on January 5, 1987.

                A State legislator was hired as co-counsel more than 10 days prior to trial and a motion for legislative continuance was filed on December 23, 1986.  The legislature was to convene in January 1987.  On January 2, 1987, after a hearing, during which the complaining witnesses testified that a continuance would cause irreparable harm from delay in enforcing their substantial rights (due process exception), Judge Poe denied the motion for continuance.  Bires filed a motion for leave to file an application for writ of mandamus in the Court of Criminal Appeals and requested an order to stay the proceedings in the trial court which was to start trial on January 5, 1987.  The stay was granted.  The petition for writ of mandamus was filed and argued and on May 20, 1987, the Court, en banc, ruled that it was the state and the Defendant who were parties to the criminal action, not the complainants; that neither the state nor any agency of the state is entitled to due process and the legislative continuance statute was constitutional.  Judge Poe was required to grant the legislative continuance.  Prior to the conclusion of the legislative session Bires filed a motion to recuse Judge Poe for taking an adversarial position against his client.  Judge Poe recused himself and later Collier received 10 years probation from judge Hearn in the 263rd District Court.

2.             Holmes v. Denson (Texas Court of Criminal Appeals, En Banc)

                Bires represented one (1) of six (6) defendants charged with engaging in organized criminal activity.  Bires filed a motion to dismiss based on unconstitutionality of the “defenses excluded” portion of the statute.  Judge Denson granted the motion ordering all six cases to be dismissed “with prejudice.”  District Attorney John Holmes filed an application for writ of mandamus alleging Denson exceeded his authority in holding Penal Code, Sec. 71.03 (defenses excluded portion) unconstitutional and ordering indictments “dismissed with prejudice.”  Court of Criminal Appeals found Judge Denson had authority to rule on constitutionality of statute but could not order the state not to refile.  The cases were never refiled.

3.             Jones v. Westergren (13th Court of Appeals, Corpus Christi )

                In the spring of 1988, a Nueces County grand jury indicted a citizen who had threatened to disclose publicly the prior criminal record of the first assistant district attorney of Nueces County because he would not file assault charges against a Corpus Christi Police Department snitch who had assaulted his daughter.  The District Judge who had disclosed the criminal record information to the citizen was also indicted and the Sheriff of Nueces County was also a grand jury target.

                On May 24, 1988, Judge Westergren, 214th District Court, Nueces County entered an order convening a Court of Inquiry to investigate the Nueces County District Attorney for alleged illegal conduct, specifically Official Oppression.  Bires was named attorney pro tem to conduct the investigation against the District Attorney.  The district attorney filed a motion for leave to file a petition for writ of mandamus and request to stay the court of inquiry.  The Court of Appeals issued a stay order and granted leave to file the petition for the writ.  On May 18, 1989, the Court of Appeals ruled Judge Westergren had authority to convene the Court of Inquiry, the court of inquiry statute was constitutional and mandamus was not the proper remedy for the District Attorney.  The stay was lifted.  In the meantime, a special prosecutor had resubmitted the cases of the citizen and the judge to a grand jury and they were no billed.  Shortly before the Court of Inquiry was to proceed the District Attorney entered into a consent order that in the future in any case involving a member of the District Attorney’s staff or one of his assistants that a special prosecutor would handle the prosecution.

4.             U.S.A. v. Preston (Southern District of Texas, Judge David Hittner)

                Bires represented the lead Defendant who was charged in a fifteen (15) count indictment with operating a continuing criminal enterprise, conspiracy to possess with intent to distribute cocaine, and various substantive counts.  She went to trial along with eight (8) other defendants charged with similar crimes.  After a four-month trial in Judge Hittner’s Court, the government’s case was destroyed.  Preston won eleven (11) of the fifteen (15) counts including the continuing criminal enterprise and conspiracy counts.  Six (6) of the nine (9) defendants were acquitted of all charges.

5.             U.S.A. v. Rodriguez (Southern District of Texas, Judge Nancy Atlas)

                Bires represented Rodriguez who went to trial with two co-defendants in Judge Atlas’ first criminal trial.  Two other co-defendants had pled guilty prior to trial.  Rodriguez was charged with conspiracy to possess with intent to distribute five kilos or more of cocaine, possession with intent to distribute 5 kilos or more of cocaine, possession of a firearm by a felon and use of a firearm during a drug trafficking offense.  Rodriguez had previously been convicted of murder in state court and was on parole at the time federal charges were filed.  Rodriguez had been arrested while sitting in his truck outside a motel room where 5 kilos of cocaine was being delivered to a paid government informant in the room.  The raid team found a .40 cal. Pistol under the armrest of Defendant’s truck and a .45 cal. Pistol under the driver’s seat where Rodriguez was seated.  During the trial the United States Supreme Court struck down the use of a firearm during a drug trafficking crime statute as unconstitutional and that charge was withdrawn from the jury’s consideration.  At trial, Bires offered the testimony of a witness who said he had borrowed Rodriguez’s truck and had placed the guns inside to go to a shooting range.  He said when he returned the truck to the Defendant's home he forgot to remove the guns.  A lawyer for one of the co-defendants who had pled guilty was in the courtroom during the trial and told Bires the testimony of the witness was the worst most incredible testimony he had ever heard.  The jury acquitted Bires’ client on all counts.