Stephen Gustitis

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Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.

Stories from Stephen Gustitis

Tuesday, May 9th, 2017

I dropped by a suppression hearing recently and listened to a prosecutor argue the merits of an anonymous tip, which they claimed justified an investigatory detention. I was puzzled. The State asserted their anonymous tip was “reliable” and, therefore, justified the stop and subsequent arrest of the defendant. Though recent case law had expanded the realm of situations in which anonymous tips may justify a detention, I soon realized the prosecutor was arguing only half the story. Evaluating a stop based upon an anonymous tip was actually a two-step process.

Thursday, March 30th, 2017

From my perspective the criminal law defense profession continues to be a man’s world. Based on 25 years of observation, the number of women defense lawyers at the county courthouse continues to be a minority. It should not be so, however. There should be more of them in our courtrooms fighting for the rights of the citizen accused.

Thursday, March 9th, 2017

If confirmed by the United States Senate, Judge Neil M. Gorsuch would fill the SCOTUS vacancy left by Antonin Scalia. During his 30 years on the Court, Justice Scalia moved the law dramatically favoring criminal defendants in several areas. One example was Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004), which held that live witness testimony was constitutionally required in criminal trials for all “testimonial” out-of-court statements. Another was Kyllo v. United States, 533 U.S. 27, 121 S.Ct.

Wednesday, January 25th, 2017

Last month we introduced the toxicological aspects of cross-examining the retrograde extrapolation expert in DWI trials. Now, an understanding of toxicology will promote our error preservation before the State’s expert attempts to bamboozle the jury with opinions about the client’s driving time BAC.

Tuesday, December 6th, 2016

Prosecutors like to use it. Occasionally, we may like it, too. Retrograde extrapolation is the method by which one estimates a person’s BAC at the time of driving based upon a chemical test result later in time. Swedish physician Erik M. P. Widmark first calculated absorption and elimination rates of alcohol in the body.

Saturday, November 5th, 2016

Metrology is the science of measurement. The State often relies upon measurements to prove allegations against our clients. For example, the determination of breath and blood alcohol concentrations in a DWI trial involve measurement. The weight of a controlled substance, and its identity, involves measurement. Other examples may include DNA and radar speed detection. Essentially, a forensic science implicating physics, chemistry, toxicology, engineering, psychology, or medicine may also implicate the science of measurement.

Friday, October 7th, 2016

Successfully summoning an out-of-state witness to testify in Texas is a chore. Texas Code of Criminal Procedure, Article 24.28, is entitled Uniform Act to Secure Attendance of Witnesses from Without State. Section 4 provides our authority to subpoena a witness from another state. The process is error-prone and rarely guaranteed. Nonetheless, your out-of-state witness may be the lynchpin of your case. To this end, some insight into the logistical pitfalls may save you hours of work and millimeters of stomach lining.

Friday, September 2nd, 2016

How do your individual attributes and professional experiences create value in the lives of other people? What qualities do you project? For what are you known? In total, these things embody your personal brand. And like it or not, you already have one. Accordingly, consider your brand as a manageable asset. Your brand is something to continuously shape with the intention of helping others benefit from having a relationship with you. It should represent the value you are consistently able to deliver to those you serve.

Saturday, June 11th, 2016

You reviewed the probable cause and interviewed your new client after receiving the court-appointment order. Prior to meeting the client, perhaps, you received a call from his mother, who shared some facts and issues related to her son’s case. As you return from the county jail, your head is now muddled with facts, arguments, theories, and things to do. The client’s case is your responsibility now. From the jumble of information collected during intake, how do you set about finding the most powerful case for your new client?

Thursday, May 5th, 2016

It seems I’ve been dangling Off the Back lately . . . regularly advising good clients of bad news. It’s been a headwind, for sure. And not something to share with many. Mostly, it’s a private struggle. And such a dichotomy. Strength on the outside, weakness on the inside. I could not have scripted the human condition any better. Inevitably, the self-doubt follows: Do I really think I’m helping anybody? Gratefully, the answer does not exist in the microcosm of introspection. Rather, it’s found in the macrocosm of the justice system in which we work.

Saturday, April 9th, 2016

Our money is rarely a topic of conversation at the courthouse. We are often stoked to talk about the law . . . always primed to share details of our latest victory or penetrating cross-examination. But what about money? When our law practice closes its doors for the last time, what will we have to show for our decades of sacrifice? Hopefully, we’ll have some degree of financial freedom. But the statistics are dismal. Americans do not save enough.

Saturday, March 12th, 2016

In Brazos County the Department of Public Safety has been using sleight-of-hand to prove up blood test results in ALR failure cases. Their conjuring attempts to correct an evidentiary deficiency in their blood test proof. Specifically, the Department tries to argue these blood test failures resulted from the suspect’s “express consent” to provide a blood sample, rather than “implied consent” under Chapter 724 of the Texas Transportation Code.

Tuesday, February 16th, 2016

I’ve been remiss. Like my fellow defense attorneys, I habitually keep my head buried in court appearances, case law and statutes, cross-examination preparation, closing arguments, and customer service. I’ve been remiss because the daily grind has so easily diverted me from reflecting on a deeper meaning in this work. Namely, safeguarding the great American experiment. We protect individual liberty and freedom. Values our founding fathers determined were most vital to a free society.

Wednesday, January 6th, 2016

In a contested bond revocation hearing, not long ago, the State attempted to admit evidence our client violated a restricted zone using global positioning system (GPS) evidence. They further sought to admit evidence from a Secure Continuous Remote Alcohol Monitoring (SCRAM) device that she inappropriately consumed alcohol while on bond.

Saturday, November 21st, 2015

When I was prosecuting habitually barking dog cases on a 3rd-year bar card, I wondered when my fear of jury trials would ever end. That was 1989. To this day I remain uneasy and agitated the morning a trial begins. In fact, I’m miserable. Until I speak my first words during voir dire, I’m frightened. I fear the beginning of my opening statement. I fear an imminent cross-examination for which I am properly prepared. I fear the start of a closing argument. I fear receiving a verdict. For the most part, I fear every aspect of a trial.

Saturday, October 10th, 2015

Batson v. Kentucky is again front and center in the United States Supreme Court. On May 26, 2015 the Court granted certiorari in Foster v. Chatman (No. 14-8349, 2015 Term). The case is currently set for argument on November 2, 2015. In Foster, Georgia prosecutors struck all four African-American prospective jurors from the death penalty venire and provided roughly a dozen “race-neutral” reasons for their peremptory strikes.

Thursday, August 13th, 2015

The National Highway Traffic Safety Administration (NHTSA) spent many thousands of dollars on studies to develop a battery of DWI investigation tools called field sobriety tests. The studies were funded by NHTSA to validate and standardize the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn, and the One-Leg-Stand tests. Standardization meant developing a method of administering and interpreting each test. Validation meant determining whether a correlation existed between test performance and a designated breath/blood alcohol content (BAC).

Friday, July 10th, 2015

The United States Constitution guarantees our right to a jury trial in both the original document and the Bill of Rights.1 The same right is further guaranteed by our Texas Constitution, art. 1, sec. 15. But more precisely, each constitution guarantees the criminally accused a right to a jury that is fair and impartial. To this end, voir dire was designed as the mechanism to ensure impartiality. It’s the primary means by which bias is discovered in potential jurors. However, even the U.S.

Thursday, May 21st, 2015

Trial lawyers are masters of disguise. They learn to shroud fear, surprise, uncertainty, and a plethora of other emotions that might damage their credibility with jurors or a position of strength with an adversary. Similarly, those same skills enable them to conceal the repercussions of a dark side of practicing law. Stress, depression, mental illness, and substance abuse. These struggles are reality for many of our colleagues. There is help, thankfully. But the path toward healing begins with a frank discussion of this life-threatening problem. 

Sunday, April 12th, 2015

The perfect cross-examination is there. Somewhere to be discovered, perhaps? Better yet—waiting to be built. We recognize its appearance, though. It is crisp and it’s clean. Short questions compelling but one-word answers from the witness. Its logic is simple yet compelling. The perfect cross demands the jury’s attention. Through it we demonstrate our mastery of the facts and tell our story. It provides us meticulous witness control. It is smooth and powerful. Its timing is flawless. Moreover, the cross-examiner is the star.