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Josh Schaffer

 

Email Josh: josh@joshschafferlaw.com

 

EDUCATION

Josh graduated from St. John’s School in Houston in 1995.  He received a BA with honors from Duke University in 1999, where he was a student member of the Board of Trustees.  He received a JD from the University of Texas School of Law in 2002.  His wife, Emily, is a civil lawyer and author.  They have two sons, Jacob and Wyatt.

 

COURTS

Josh is licensed to practice before the United States Supreme Court; the United States Court of Appeals for the Fifth Circuit; the United States District Court for the Southern, Northern, Eastern, and Western Districts of Texas; and the Texas state courts.

 

ORGANIZATIONS

Josh is a member of the American Bar Association (ABA), National Association of Criminal Defense Lawyers (NACDL) (Life Member), Texas Criminal Defense Lawyers Associations (TCDLA), Harris County Criminal Lawyers Association (HCCLA), and Houston Bar Association (HBA).  He also is a Fellow of the Texas Bar Foundation, a charitable organization whose selective membership consists of one-third of 1% of licensed Texas lawyers.

 

HONORS

Josh has been recognized as a Texas Super Lawyer in 2016 and as a Texas Super Lawyer Rising Star, one of the top Texas criminal defense lawyers under the age of 40, for 11 years in a row from 2006-16.

 

CONTRIBUTION TO LEGAL EDUCATION

Josh has taught criminal litigation as an adjunct professor at the University of Houston Law Center.

 

COMMUNITY INVOLVEMENT

Josh serves on the Alumni Board of St. John’s School and on the Advisory Council of Breakthrough Houston.

 

PUBLICATIONS AND SPEECHES

Josh has presented the following speeches and papers:

 

  • “Being Effective in Your Defense: Avoiding Common Mistakes in Drug Cases,” NACDL seminar on Defending Drug Cases, Las Vegas (Nov. 2009);

 

  • “Appellate Oral Advocacy,” State Bar of Texas Advanced Criminal Law Courses, San Antonio (July 2010) and Houston (July 2011);

 

  • “Enhancements:  Understanding, Preparing For, And Challenging Them In Trial And On Appeal,” HCCLA, Houston (May 2011);

 

  • “Pretrial Appeals in Criminal Cases,” UT Law School Conference on Criminal Appeals, Austin (May 2013); State Bar of Texas Advanced Criminal Law Course, Dallas (July 2013); TCDLA seminar on Winning Warriors, Houston (Oct. 2014);

 

  • “How To Try A Criminal Case Without Being Afraid,” along with Randy Schaffer, Harris County Public Defender’s Office In-House Training, Houston (January 2015); and

  • “False Evidence Claims,” State Bar of Texas Criminal Writs Course, Austin (Dec. 2016).

 

CASES

Josh began practicing with his father, Randy Schaffer, in September of 2002, and started his own practice in January of 2014.  He has distinguished himself in the trial and appellate courts and also has assisted Randy in jury trials and post-conviction cases.

 

Josh has had success in jury trials, as demonstrated by the following cases:

 

  • a parolee was acquitted of assaulting his wife; had he been convicted, his parole would have been revoked, and he would have returned to prison to complete a 25-year sentence for murder;

 

  • a fireman who was hunting doves without a license and ran from the game warden was acquitted of evading detention;

 

  • a waiter who drove through a police roadblock, had an open can of beer in his car, and blew a .14 intoxilyzer test was acquitted of DWI;

 

  • a NASA scientist who caused a car accident and drove away from the scene was acquitted of DWI, second offender;

 

  • a businessman who caused a car accident and refused to cooperate with the police was acquitted of DWI;

 

  • a businessman was acquitted of DWI; and

 

  • juries deadlocked at two other DWI trials, and the State dismissed both charges.

 

Josh’s most publicized case resulted from his successful representation of Planned Parenthood Gulf Coast (PPGC), which the State investigated in 2015 after anti-abortion activists alleged that it was illegally selling fetal tissue.  After a six-month investigation, a grand jury cleared PPGC of any wrongdoing and, in a surprising twist, indicted the anti-abortion activists for tampering with a government record and illegally offering to buy fetal tissue.

 

Josh has presented packets to the grand jury that resulted in no-bills for the following clients:

 

  • a school teacher charged with injury to a child;

 

  • two store clerks charged with tampering with a governmental record after they made identification cards that resembled driver’s licenses;

 

  • a businessman charged with indecency with a child after he was mistakenly identified as the man who exposed himself to children at an apartment complex;

 

  • a high school student charged with burglary after he entered a friend’s home while the family was on vacation;

 

  • a man charged with aggravated assault with a deadly weapon after allegedly hitting a woman with a flashlight during a bar fight;

 

  • a man charged with felony possession of a weapon in a government building after he entered a courthouse with a switchblade;

 

  • a man charged with felony assault on a police officer and evading arrest in a motor vehicle after an argument at an apartment complex swimming pool;

 

  • a college student charged with burglary of a building after he entered his college campus’s secure, underground tunnel system at night; and

 

  • a mother charged with endangering a child after she drove through a police roadblock, and the police smelled marijuana and found drugs in the car in which her infant child was a passenger.
     

  • a former professional soccer player and youth coach charged with injury to a child after he chased down and confronted a group of boys who were bullying his son at school.

 

Josh has obtained dismissals of drug charges because of illegal detentions and/or searches; family violence assault charges filed by vindictive spouses; possession of child pornography charges filed on businessmen who had illegal images and video files on their computers; a burglary of a motor vehicle charge filed on a college student who, while intoxicated and disoriented, entered someone else’s vehicle; a drug charge filed on a college student in violation of the statute of limitations; an indecency with a child charge filed on a high school student for allegedly fondling another student in a hallway; an assault on a peace officer charge filed on a retired businessman who was beaten by jail guards after being arrested for DWI; and numerous other charges for a variety of offenses.

 

One of Josh’s earliest post-conviction cases resulted in a significant decision from the Fifth Circuit in a case of first impression.  Josh Bagwell, serving a life sentence for capital murder, escaped while his habeas corpus petition was pending in the federal district court.  The court dismissed the petition because of the escape.  The Fifth Circuit heard argument, overturned that decision and, in essence, remanded the case to the district court for a decision on the merits.  He also successfully argued in the Court of Criminal Appeals that a particular jury instruction in a capital murder case constituted an impermissible comment on the evidence.

 

Josh has obtained post-conviction relief for the following clients:

 

  • Heriberto Saenz, sentenced to 70 years in prison for murder and 20 years for three aggravated assaults, was represented by counsel who failed to impeach the State’s key eyewitness with his prior inconsistent statement that he could not identify the shooter.  Habeas corpus relief was granted and the conviction was set aside in a published, unanimous opinion that established favorable guidelines for a habeas applicant’s right to amend his application while it is pending and that limited the State’s ability to bar habeas relief by pleading laches.

 

  • Evangelica Aguilar, sentenced to 25 years in prison for murder, was represented by counsel who opened the door to, failed to object to, and elicited inadmissible, prejudicial evidence; failed to object to improper argument; and failed to request limiting instructions.  Habeas corpus relief was granted, and the conviction was set aside.  She was acquitted at a retrial.

 

  • Mr. Garcia had consensual sex with his 12-year-old girlfriend when he was 18 years old.  A non-citizen, he pled guilty to aggravated sexual assault of a child without an agreed recommendation on punishment and was sentenced to 30 years in prison.  Josh convinced the State to join his request for habeas corpus relief based on ineffective assistance of counsel in failing to call the complainant’s father to testify for the defense at the punishment stage.  The Court of Criminal Appeals granted a new trial on punishment.  Josh then persuaded the State to join in a motion to allow Mr. Garcia to withdraw his guilty plea, and the State dismissed the case.  Had he been resentenced, even to time-served, he would have been deported.  He not only can stay in the country but also can expunge the charge from his record.

 

  • Mr. Dietrich, sentenced to 33 years in prison for aggravated sexual assault of a child, was represented by counsel who failed to preserve error during voir dire; elicited and failed to object to inadmissible, prejudicial testimony; failed to impeach the complainant; failed to present character testimony that Mr. Dietrich treated children safely and morally; and failed to investigate his criminal record and advise him to rest during the punishment stage after the State did not present evidence so the jury would not learn about his prior convictions.  The trial court, after an evidentiary hearing, recommended a new trial on guilt-innocence and punishment, which the Court of Criminal Appeals granted.

 

  • Raymond Murray was charged with the felony of making a false statement to obtain credit.  He pled guilty to misdemeanor forgery.  Josh moved to withdraw the guilty plea alleging that the trial court did not have jurisdiction to convict Murray because forgery is not a lesser included offense of making a false statement to obtain credit.  The trial court denied the motion and sentenced him to six months in jail.  The court of appeals held that the plea was void because misdemeanor forgery is not a lesser included offense of making a false statement to obtain credit and that Murray could challenge the conviction on appeal even though he agreed to the plea bargain.  The Court of Criminal Appeals granted the State’s petition for discretionary review but reversed the conviction in a published opinion.  The State dismissed the charge.

 

  • Joseph McVey, the rap artist known as “Z-Ro,” was sentenced to four years in prison for possession of a controlled substance.  The trial court found that his guilty plea was involuntary because his lawyer and the judge incorrectly advised him that the indictment alleged a second degree felony, when in fact it alleged a third degree felony.  The trial court granted a motion for new trial, and the conviction was set aside.

 

  • Mr. Adelaja, convicted of felony insurance fraud, was represented by counsel who failed to object to police opinion testimony that Adelaja’s story was not credible and to records of other insurance claims.  Habeas corpus relief was granted, the conviction was set aside, and the State dismissed the charge.

 

  • Mr. Rosnow was convicted of failing to stop and give information at the scene of an accident.  The State failed to disclose that its key eyewitness had prior convictions, was on parole when he testified, and had pending charges—that were later dismissed—when he gave the police a written statement.  The trial court granted a motion for new trial based on prosecutorial misconduct.  The State dismissed the charge, and the arrest was expunged from his record.

 

  • Ms. Taiwo, convicted of employee theft, was represented by counsel who failed to request a charge on the defense of mistake of fact and failed to object to inadmissible testimony that she was responsible for an $800,000 inventory shortage at the business.  Habeas corpus relief initially was granted in the form of an out-of-time appeal.  The court of appeals then reversed the conviction based on ineffective assistance of counsel.  The State dismissed the charge, and the arrest was expunged from her record.

 

  • Ms. Idoko, convicted of delivery of a dangerous drug, was represented by counsel who had a conflict of interest and failed to advise her of a defense to the charge.  Habeas corpus relief was granted, and the State dismissed the charge.

 

  • Mr. Ferguson, convicted of desecration of a venerated object, was represented by counsel who failed to advise him of defenses to the charge.  Habeas corpus relief was granted, the State dismissed the charge, and the arrest was expunged from his record.

 

  • Mr. Steen, sentenced to two years in prison for possession of a controlled substance, was represented by counsel who gave him incorrect advice regarding the consequences of pleading guilty.  Habeas corpus relief was granted, and the conviction was set aside.

 

  • Mr. Gamez, a non-citizen placed on probation for burglary of a building, was represented by counsel who gave him incorrect advice regarding the immigration consequences of pleading guilty.  Habeas corpus relief was granted, the conviction was set aside, and the charge was reduced to a misdemeanor so he would not be deported.

 

  • Mr. Michel, a non-citizen, was convicted of a drug offense.  When the federal government began deportation proceedings, Josh convinced the State that the judgment of conviction was void because the charging instrument did not allege a criminal offense.  Habeas corpus relief was granted, the conviction was set aside, and the charge was dismissed.  He not only can stay in the country but also can expunge the charge from his record.

 

  • Mr. Breger, who pled guilty to assault of a family member, was represented by counsel who gave him incorrect advice that he could seal the records from the case if he successfully completed deferred adjudication probation.  Habeas corpus relief was granted, the guilty plea was set aside, the charge was dismissed, and the arrest was expunged from his record.

 

  • Ms. Lussier was convicted of misdemeanor theft in 1981 when she was 24 years old.  Thereafter, she moved to another state, married, raised a family, and taught school.  Thirty years later, Josh persuaded the trial judge, district attorney, and sheriff to support a full pardon, which Governor Rick Perry granted.  The conviction was expunged from her record.

 

  • Ms. Williams and Mr. White, who were convicted of assault, were represented by counsel who had a conflict of interest.  Habeas corpus relief was granted, their convictions were set aside, and the charges were dismissed.

 

TESTIMONIALS

 

Lawyers and Judges

 

Josh’s work has been recognized by lawyers and judges, as reflected by the following letters:

 

A state district judge wrote the following letter to Josh’s father, Randy, after Josh appeared in the judge’s court for a post-conviction habeas corpus evidentiary hearing:

 

“Not long ago, your son Josh was in my court handling a writ hearing.  I was so impressed with his professional courtesy and vigor in representing his client.  He is a great lawyer and a great person.  Like his Dad.  I know you are very proud of him.”

 

The briefing attorney for a county’s state district judges wrote the following letter to Josh after a post-conviction case:

 

“Having had little exposure to post-conviction habeas corpus during my time with the Court of Appeals, I still consider myself a novice even after four years of attempting to process and advise the criminal court judges on Art. 11.07 matters, not to mention the few Art. 11.072 and 11.071 applications.  Your considerable experience in post-conviction habeas matters, along with your consummate professionalism, has provided me with a welcome and refreshing change-of-pace from the typical Art. 11.07-writ application that comprises approximately 99% of such filings we receive.”

 

Clients

 

Josh has enjoyed a special relationship with his clients over the years, as reflected by the following letters:

 

Joel Stafford wrote the following letter to Josh after he was acquitted of assault:

 

“It brings great pleasure to have had the Schaffer Firm represent me in a critical time in my life.  I can say you raise the standard of the legal profession in what an attorney-client relationship is all about.  The Schaffer Firm zealously pursues superior actions and results to protect the rights of its clients.  Josh, it is a blessing that I had you representing me.  I know that you will take your father’s legacy to even greater heights.  I thank you and the Firm, for you are true professionals.”

 

Mr. Dietrich wrote the following letter to Josh after his conviction and 33-year sentence for aggravated sexual assault of a child were set aside, and he was released from prison with credit for time-served:


“Thank you so much for all your work and giving me my life back. You know I really had what amounted to a life sentence, and now I can have a life. I am forever grateful to you. If I can ever do anything for you, just ask, and if it is within my ability, I will gladly do it.”

Ms. Taiwo wrote the following letter to Josh after he obtained an out-of-time appeal of her theft conviction based on ineffective assistance of appellate counsel; the conviction was reversed on appeal; the State dismissed the charge; and it was expunged from her record:

 

“My family and I wish to express our immense gratitude for all you have done to enable me to get my life back on track again.  You have gone beyond the call of duty to give of yourself and your time to win the appeal, and there are hardly any words that would suffice to express our utmost appreciation for what you have done.  Your Dad, the highly reputed and esteemed Randy Schaffer, has been simply magnificent.  I am thankful for his tolerance, patience, and generosity towards me.  My deepest appreciation to him.  Your selflessness, kindness, and perseverance in the face of all odds remain a testament to your admirable work ethics.  Your handling of my case exceeded expectations and assured me I was in the hands of the crème de la crème of American lawyers!  Your law firm and all the employees I have had the opportunity to meet and work with over the last seven years have all been the best.  Indeed, it has been my huge privilege to have had the opportunity to meet and hire you.  My sincere ‘thank you’ to them all.  So, Super Lawyer, you are hereby wished a lifetime of everlasting joy!  May the Almighty God always smile upon you and your family.  May your household forever be flooded with God’s abundant mercies and favors.”

 

A speech pathologist wrote the following letter to Josh after her DWI charge was dismissed and expunged from her record:

 

“I just wanted to thank you for the amazing job you did on my case.  I could not have had a better outcome and I’m finally able to put this most unpleasant experience behind me.  If any of my friends, family, or acquaintances should find themselves in a similar situation, I would emphatically recommend your services.  I wish you continued success in your practice.”

 

A businessman wrote the following letter to Josh after he was acquitted of DWI:

 

“I’m of the opinion that it could have only been a ‘top notch’ lawyer to do what you did.  You are a true professional, and I honestly appreciate everything you did.  You were a true ‘prize fighter’ in the courtroom, and the jury saw it.  GREAT JOB, Josh!!!  I will hopefully never need your services again in a courtroom, but you will be the first I recommend to anyone.  Thanks again.”

 

A NASA scientist wrote the following letter to Josh after he was acquitted of DWI, second offender, and his charge for failing to stop and give information was dismissed:

 

“I wanted to thank you again for all your hard work.  I was impressed by your legal skill, and overwhelming positive result for me.  I have contemplated how to properly thank you.  The main reason for me coming to Houston was to work on Space Shuttle problems for Boeing/NASA. . . . None of that work could have been done without your help.  Thank you very much.”

 

Mr. Jensen, serving a 40-year sentence for aggravated sexual assault, wrote the following letter to Josh after receiving a copy of his habeas corpus application:

 

“I am writing to thank you for the excellent service you provided on my writ of habeas corpus and for your quick and prompt response in answering all letters and questions.  I honestly believe that I have finally found a lawyer that goes above and beyond the call of normal lawyering duties, who really cares about his clients.  When I received my brief and read it for the first time, I knew that you had dedicated a lot of time, effort, and research into making sure I received the best possible outcome.  Mere words cannot express how grateful I am to have found an attorney of your caliber.  Regardless of the outcome of this proceeding, I honestly believe that you have rendered unto me the best representation out there.  Once again, thank you for a job well done.”

 

Scotty Taylor, serving a 99-year sentence for possession of a controlled substance, wrote the following letter to Josh at the conclusion of the evidentiary hearing in his habeas corpus proceeding:

 

“Thank you.  I’m very proud of you and your work at this hearing.  You covered absolutely every avenue that this or any court could possibly run to now or in the future.  Marvelous job.  You should have seen the looks on these clowns from the State when you and the judge were going back and forth at the end of the hearing.  They could do only one thing.  Sit with their mouths open and stare at you.  Even the judge had a smile at the end and said great job.”

 

Evangelica Aguilar, serving a 25-year sentence for murder, wrote the following letter to Josh at the conclusion of the evidentiary hearing in her habeas corpus proceeding:

 

“I just want to say thank you for all that you and Randy have done.  I was amazed and in awe by what I saw in court.  Too bad I couldn’t have had the Schaffer Firm from the beginning.”

 

Phyllis Zwarich wrote the following letter to Josh at the conclusion of the evidentiary hearing in the habeas corpus proceeding for her son, David Van Houten, serving a 26-year sentence:

 

“THANK YOU THANK YOU for the great job you did for us in Midland.  If you are just the chip off the old block, I would love to see the old block in action!  Your professional presentation of David’s case was masterful.”

 

Joyce Hoffpauir wrote the following letter to Josh at the conclusion of the evidentiary hearing in the habeas corpus proceeding for her son, Shannon Dukes, serving a 40-year sentence:

 

“Just wanted to take the time to express our heartfelt thanks to you for all the time and obvious effort you showed on our family’s behalf in the hearing.  Our Creator has blessed you with wisdom, and we were able to witness this in that courtroom.  It has been almost five years now, and at last we saw some results by your honest demonstration.”

 

Mrs. Norwood wrote the following letter to Josh after receiving the brief that he filed in the habeas corpus proceeding for her son, serving a six-year sentence:

 

“We were elated over the awesome brief you prepared and can’t thank you enough for taking this matter, of his innocence, so serious with such a thorough and well laid out document.”

 

Mr. Westerburg wrote the following letter to Josh after his daughter’s intoxication assault charge was reduced to a misdemeanor DWI:

 

“I, on behalf of myself and my daughter, wish to sincerely thank you for the efficient, effective and successful manner in which you handled her case.  This was the first time that I or an immediate member of my family has had this kind of involvement with a serious criminal proceeding.  It is spooky to say the least knowing that the potential punishment and loss of freedom is a real possibility.  We are very pleased that you engineered such a quick and what we consider a successful outcome.  A sincere thanks.”

 

Mrs. Brennan wrote the following letter to Josh after her husband’s assault on a peace officer charge was dismissed on the day of trial:

 

“Paul and I are so very thankful to have met both you and your father.  Because of your determination, will to succeed, and belief in justice, you were able to put an end to a yearlong nightmare.  We will never forget all your efforts, and hope you know just how grateful we are.”

 

Robert Squire wrote the following letter to Josh during the habeas corpus proceeding for his wife, Evangelica Aguilar:

 

“I have been reading your work on her writ and am extremely very proud of what you have done and said.  This is a fantastic piece of work.  I get very excited every time I review this.  It’s an amazing statement.  I am/we are, very happy we hired you and the Schaffer Firm for this habeas filing.  I know you are going to get the best results possible out of this hearing and am very anxious to see this hearing.  Keep up the great work, and hopefully we’ll see Evie home in the near future.  We both know we have a long road ahead of us, but you’ve gotten what we’ve needed so far, there is no reason to think more can’t be achieved.  Our hopes and prayers are with you, your talent and ability.  Thank you for everything.”

 

Mr. Squire wrote the following letter to Josh at the conclusion of the evidentiary hearing in his wife’s habeas corpus proceeding:

 

“Once again, Josh, we cannot thank you enough for the way you handled the courtroom proceedings.  Together, you [and Randy] are unmatchable, peerless.  I had a chance to speak with [Ms. Aguilar’s trial lawyer] afterwards.  He said that he had never seen anyone better prepared.  Thank you and Randy for your more than hard work and tough fought battle.  You guys are the greatest.  Even if this doesn’t go our way, you will forever have our support and recommendations to anyone who asks.  We give you the highest marks for your work.  No matter the outcome, we know the effort you put forward and appreciate it more than words can express.  Thank you from the bottom of our hearts.  It’s not over quite yet, but I wanted to say these things to you before it is over because of how strongly we feel about the work you preformed for Evie for us.  Good luck and keep up the fantastic work you and your firm is doing.”

 

The parents of a high school student wrote the following letter to Josh after he obtained the reduction of a felony charge to a misdemeanor:

 

“We want to thank you for all the work you did and time you spent on our son’s case.  The outcome was much better than expected.  Your dad and now you have been a great influence on him.  Please keep in touch with him.”

 

Virgil Stone wrote the following letter to Josh after he represented Stone’s grandson:

 

“You are a good lawyer, and an honest one on legal fees.  Your actions are very much appreciated.  When we need legal help in the future, or when our friends need such service, I certainly will not forget you.”

 

Mr. Ferguson wrote the following letter to Josh after his conviction was set aside and the case was dismissed and expunged:

 

“I really appreciate all the work you did on my case.  You got done exactly what I needed done, and it couldn’t have turned out any better.  I will recommend you anytime.”

 

Theda Flournoy wrote the following letter to Josh after he represented her grandson:

 

“A personal note to thank you for the work you did on behalf of my grandson.  Your professionalism in the manner you treated him, with shaking hands with him first on entering the courtroom and speaking to him first regarding his options and letting him be a man, ranked very high in a grandmother’s eyes.  My daughter and son-in-law were very lucky to have you on their side.”

 

Mr. Thompson wrote the following letter to Josh after a favorable resolution of his case:

 

“I just wanted you to know that I am very thankful for your help.  You were a wall for me to lean on.  You saved my job and helped me through an error in judgment.  I hope you take comfort in that you will never see me in that situation again, I promise you that.  Thank you for all that you have done for me and my family.  We are very lucky to have met you.”