As a Harris County prosecutor, part of Brian Foley's job was to review arrests before charges were filed — and to decline the ones that did not hold up. Plenty did not. He explains in this video what went wrong most often.
The wrong charge
Theft charged when the facts show a civil dispute over property. Assault charged when the "injury" is a complainant's say-so with no corroboration. Evading charged for a driver who pulled over a block later in a safe spot. Officers charge from a menu under time pressure, and the charge on the paperwork often does not match the elements of the statute.
The bad stop
A stop for "failure to maintain a single lane" where the video shows a momentary drift on an empty road — no longer sufficient after State v. Hardin. A stop for a "defective" plate light that is working. A stop that was really a pretext, extended past its purpose without new suspicion. When the stop fails, everything after it is suppressed.
Misscored sobriety tests
The field sobriety tests must be administered and scored exactly as NHTSA trains. Officers routinely skip instructions, test on uneven ground, and count "clues" the video does not support. A trained lawyer compares the video to the manual, clue by clue.
Mistaken identification
Cross-racial identifications, single-photo show-ups, and lineups administered by an officer who knows the suspect are notoriously unreliable — the leading cause of wrongful convictions nationally. Texas now requires written lineup procedures, and departures from them are admissible. See our eyewitness identification page.
The overstated report
"The defendant appeared extremely intoxicated." "The defendant became aggressive." The body-camera video is the check. When it shows a calm, cooperative person, the report loses credibility — and so does the case.
None of this means officers are dishonest. It means an arrest is one person's judgment under pressure, and the system depends on someone checking it. That is the defense lawyer's job. Brian Foley and Luis Baez did the checking as prosecutors. Call or text (713) 703-1718.