Nov 02
2
Juvenile Intake Tarrant County

The Juvenile Justice Intake Process in Tarrant County, Texas

By | Juvenile

Juvenile Intake Tarrant CountyIn Tarrant County, the Juvenile Probation Department is the intake agency for the county. This means that when a police officer files a case against a juvenile, it goes to Juvenile Probation before being sent to the District Attorney’s Office. The common practice is for cases to be referred by law enforcement officers without making an arrest. When this happens, there is a specific process in place with certain tasks that the juvenile intake officers must perform before a case is referred to the prosecutor. This article will walk you through this often-misunderstood process and explain why those juvenile probation officers do what they do.

Overview of the Juvenile Intake Process in Tarrant County, Texas

When a case is first received by the Tarrant County Juvenile Probation Department, it is assigned to an intake unit. There are three intake units within the department. Once it is received by the intake unit supervisor, it is assigned to a court intake officer. The court intake officer is responsible for completing several tasks prior to court, including: conducting an intake appointment, administering assessments, making sure the juvenile is fingerprinted and photographed, and preparing a social history. The intake officer must also make a decision about what the next step in the process should be.

The Intake Appointment

The intake appointment is, arguably, the most important piece of the intake process in Tarrant County. It is also the part that is the most confusing to families and defense attorneys alike. While families and attorneys can, and do, refuse to participate in the intake appointment, nothing good comes from refusing. To the contrary, in some cases, cooperating with the probation officer by showing up for the intake appointment can help resolve the case without a referral to the prosecutor or court action. The defense attorney can be at the intake appointment if he wishes, but is not required to be.

During the intake appointment, the probation officer will explain the process to the juvenile and his family. They will also explain the charges and sometimes read a summary of the police report. They are not allowed to give a copy of the police report to the family. The intake officers do not ask the juvenile about the offense. Next, the officer will get some background information from the family. This information will include a family history, school history, and information on any other agencies that the family has been involved with. The officer will also ask about substance abuse, mental health, any prior hospitalizations, current and past medications, behavior at school and home, and family criminal history. The purpose in gathering all this information is to put together a social history, which is a comprehensive report, on the child that will guide the court and the attorneys involved when making decisions about the juvenile and the case.

Juvenile Assessments – PACT & MAYSI

During the intake appointment, the probation officer will also administer a couple of assessments to the juvenile. These are required, but the defense attorney can decline the assessments. The two assessments, which are given are called the PACT and the MAYSI.

The purpose of the PACT assessment is to determine the child’s risks to reoffend and needs for services. The results of the PACT assessment are included in the social history that is given to the court and attorneys. The MAYSI is designed to screen for problems with mental health, substance abuse, and/or suicide. If the results of the MAYSI show a concern for suicide, a no-harm contract will be completed with the child, and the officer will refer that child for services to help with the suicidal tendencies.

Fingerprinting and Photographing

The Texas Department of Public Safety (DPS) requires anyone who is charged with a crime, juvenile or adult, to be fingerprinted and photographed. This information is submitted to DPS and is included in the person’s juvenile or criminal history. When a person is arrested, these two things are done as a part of the book in process. However, when a juvenile case is referred to the Tarrant County Juvenile Probation Department without an arrest, the probation officer is required to get the fingerprinting and photographing done. This is usually done during the intake appointment. It entails the officer walking the child to the juvenile detention center where the fingerprint and photograph office is located and having it done. This is one part of the process, which cannot be waived or refused. It is required by the State of Texas in every case.

Probable Cause Decision Regarding the Case

The last aspect of the intake process is for the probation officer to make a probable cause determination on the case and decide what to do with the case. There are certain offenses that are considered “mandatory referrals” in Tarrant County. This means that the probation officer is required to refer the case to the prosecutor for review. The mandatory referral offenses are the more serious offenses and are usually felonies.

For offenses that are not mandatory referrals, the probation officer is responsible for making a decision about what to do with the case. The officer can, of course, refer a case to the prosecutor for review even if it is not a mandatory referral. However, they have other choices too. They can dismiss a case or offer the juvenile Deferred Prosecution Program (DPP), which is an informal probation period without charges being filed. In some cases, the officer may determine that if the child pays restitution, then the case can be closed out without any further action. If the child and family does not cooperate with the intake process, the officer is required to refer the case to the prosecutor. However, if the family does participate, they may find that they can take care of their case during the meeting with the intake officer, which is definitely to the child’s benefit.

Additionally, the officer may, and many times will, make referrals for services to the family based on their needs. These referrals could be for any number of resources available in the community. They could include referrals to MHMR, school programs, and counseling, to name a few.

The Tarrant County Juvenile Probation Department’s intake process is misunderstood many times by families and attorneys. It is not an adversarial process. The intake officers are neutral parties charged with gathering information, preparing social history reports, and making referrals for services. They are required by law to perform a few tasks, such as fingerprinting. However, their primary purpose is to help the child and the family navigate a system which may be unfamiliar and confusing. If you and your child are contacted about meeting with an officer for an intake appointment, it is preferable for you to cooperate so that you may have access to all possible options in your child’s case.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office.  She has tried over 20 juvenile cases in Texas and multiple certification hearings.

Oct 31
2
Texas Burglary Own Home

Can You Burglarize Your Own Residence?

By | Burglary

Can a Roommate Who is Not on the Lease be Convicted of Burglary of His or Her Own Residence?

Texas Burglary Own HomeThe Court of Criminal Appeals recently held that a roommate, who is not a co-tenant on the lease, could be convicted of burglary into his or her own residence. The key issue facing the Court was whether Appellant Dewan Morgan was an owner of the apartment he was residing in at the time of the criminal act.

In order to commit a Burglary of a Habitation, a person “without the effective consent of the owner (a) enters a habitation with intent to commit an assault or (b) enters a habitation and commits or attempts to commit an assault.” Tex. Penal Code § 30.02(a)(1). An “‘owner’ means a person who has title of the property, possession of the property, or a greater right to possession of the property than the person charged.” Tex. Penal Code § 1.07(a)(35).

Morgan v. State (Tex. Crim. App. 2016)

The Facts – Trial Court Found Appellant was NOT Considered an Owner

Dewan Morgan moved in with his girlfriend, Regina, in November of 2012. Regina gave Dewan Morgan a key to the apartment, but did not add his name to the lease. She mostly paid the bills and expenses with occasional help from Appellant. Additionally, Appellant kept his personal items at the apartment.

On June 20, 2013, Morgan and Regina got into an argument. Regina did not want Morgan back in the apartment, so she locked the deadbolt from inside the apartment so that Morgan could not get in with his key. He knocked on the door and rang the doorbell, but Regina did not open the door. Morgan threw a rock into a side window, which broke the window, and then began kicking in the door. He was able to gain entry into the apartment, and when he went inside he grabbed Regina, pushed her to the bed, bit her on the side of her left breast, punched her, and choked her. The police arrived and arrested Morgan. The jury found Morgan guilty of Burglary of a Habitation – a 2nd Degree Felony.

The Court of Appeals Reversed and Found Appellant was an Owner and Could Not Commit Burglary

The Second Court of Appeals held that there was “no evidence of the absence of ‘the owners’ consent” because Appellant was a co-tenant, thus an owner of the apartment. The court erroneously relied on Texas Code of Criminal Procedure, Article 21.08, which provides a definition of an owner for indictment purposes. Under that definition, the court held that because Appellant lived in the apartment and kept his belongings inside it, he was also an owner of the apartment. Additionally, there was no evidence that his tenancy was terminated, thus he had the right to occupy and control his apartment.

The Court of Criminal Appeals Reverses — Holds Appellant was Not an Owner and Did Not Have Effective Consent to Enter the Apartment

The CCA followed the Freeman standard to determine ownership: “A person’s ‘right to possession’ must be measured at the time of the accused’s alleged criminal act.” Freeman v. State, 707 S.W.2d 597 (Tex. Crim. App. 1986). The Court also extended this application to effective consent and concluded that “if a person’s status as ‘owner’ is measured at the time of the criminal act, then so is giving, or removing, of the effective consent to enter.” Essentially, the Court takes a snapshot of the criminal action and determines effective consent in only that instance.

The CCA first analyzed who the owner of the apartment was. It quickly rejected reliance on Article 21.08 because it is “only applicable in evaluating the sufficiency of an indictment.” Instead, the Court looked to the Penal Code’s definition that was included in the jury charge, as noted above. The Court said the “Penal Code’s definition of ‘owner’ clearly indicates that a defendant who has some, but less, right to control a habitation than the alleged owner may be prosecuted for burglary.”

The key concern for the Court was whether Regina’s right to possess the property was greater than Appellant’s at the time of the criminal act. The Court considered that only Regina’s name was on the lease, that she paid the rent, and that she gave Appellant a key and she could take it away. Ultimately, Regina’s possession of the apartment was greater than Appellant’s, which did not give Appellant equal ownership rights. The Court held that at the time of the offense, Regina’s right to possess the apartment trumped Appellant’s and that only she was the owner at the time of the criminal act.

The CCA next analyzed whether there was no effective consent to enter. Again, the Court analyzed effective consent only in the snapshot of when the criminal act occurred. Even though Regina testified at trial that she did not intend to permanently withhold consent to enter and it was only temporary, the Court found that the temporary revocation of consent during the criminal act was “sufficient to establish the absence of effective consent.” When Regina locked Morgan out of the apartment during their argument, the Court found it clear that Regina did not want Morgan to enter the apartment. Thus, the CCA held that Morgan did not have effective consent to enter the apartment.

The CCA’s Snapshot Analysis – Evidence is Legally Sufficient to Support the Jury’s Guilty Verdict

The CCA considered the factors during the time of the crime and held that the jury was authorized to find that Regina was the owner of the apartment because she had a greater right to possession of the apartment than Appellant, and at the time Appellant entered the apartment, he did so without the effective consent of Regina and with the intent to assault her.

Oct 26
1
Emergency Aid Police Arrest Texas

Does the Emergency Aid Exception Apply to Vehicle Stops?

By | Warrantless Search

Officers Are Justified in Stopping Vehicles to Render Emergency Aid Making Evidence Found in the Process Fair Game

Emergency Aid Police Arrest TexasThe Fifth Circuit Court of Appeals recently handed down an opinion dealing with the emergency-aid warrant exception and whether that exception extends to vehicular stops. The issue facing the court was whether a traffic stop of Appellant Toussaint to warn him that a gang member had ordered a hit on him was justified under the emergency aid exception to the Fourth Amendment. The court reversed the suppression order from the trial court holding that the emergency aid exception did justify the stop because this was a proper exigent circumstance.

US v. Toussaint (5th Circuit – 2016)

The Facts—Trial Court Found the Exigent Circumstances Had Expired

An FBI agent monitoring a wiretap overheard a suspected gang-member order his associate to kill Toussaint who could be found in a specific neighborhood driving a specific car, a silver Infiniti. Immediately the agent contacted a local police officer who met with several other officers to determine the plan to locate and warn Toussaint of the hit. The officers drive to the specified neighborhood and search for silver Infinities until they find one with an occupant leaving the neighborhood. The officers follow the vehicle, observe the driver, Toussaint, speeding and pull him over. Once pulled over Toussaint flees the officers on foot until he was caught and placed under arrest. During a search of Toussaint incident to arrest officers found a pistol and a bag of crack cocaine. The amount of time between the FBI agent overhearing the initial threat and Toussaint’s arrest was about 45 minutes.

Toussaint was charged with drug and firearm violations. Toussaint filed a motion to suppress the evidence obtained from the stop arguing that the stop was not justified. The trial court granted Toussaint’s motion to suppress finding that the exigency of the emergency had expired by the time the officers stopped Toussaint.

The Court of Appeals Reversed the Trial Courts Decision—Holding the Emergency-Aid Exception Applied in this Case and the Exigency Had Not Expired

The court held that the emergency-aid exception extends to vehicular stops when under the circumstances of the need to assist persons with serious injuries or threatened with serious injury. The emergency aid exception allows officers to conduct warrantless searches or seizures when there is a need to assist persons with serious injuries or threatened with a serious injury. Stuart, 547 U.S. 398 at 483. Under this exception, officers can enter areas they otherwise are not allowed in order to help someone. While the majority of such cases involve warrantless entries into homes, the court determined that there is no logical reason to not extend the exception to vehicular stops. Additionally, looking to reasonableness, “the ultimate touchstone of the Fourth Amendment,” the court stated “the benevolent act of trying to notify a driver that his life is in danger epitomizes reasonableness.” Thus, the court held that the emergency aid exception can be used to justify a traffic stop under proper exigent circumstances.

Then, the court held that the exception applied in this case and officers were justified in stopping Toussaint. The court stated that trial courts must examine objective facts of the circumstance in determining whether there was an objectively reasonable basis for believing exigency actually existed. The officers’ subjective motivations are never relevant in the determination. When the officers received what all parties agreed was a credible threat against Toussaint, who was located in a specific neighborhood and driving a specific vehicle, the court held it was reasonable for the officers to believe there was a serious threat on Toussaint’s life. Further, that exigency still existed at the time of the stop because the threat on Toussaint’s life had not ended within the 45 minutes it took officers to locate him and warn him. Since the stop was justified the search was proper and evidence was legally obtained because it would be contrary to the needs of law enforcement to force officers to ignore evidence found when they stop vehicles to render emergency aid.

In conclusion, the court held that the emergency aid exception extends to vehicular stops and that here, the stop of Toussaint was justified under this exception because there was a serious threat on his life. Accordingly, the court reversed the suppression order because the trial court was improper in granting the motion.

Oct 24
2
Tarrant County Juvenile Drug Court Program

Help When You Need It Most: Tarrant County Juvenile Drug Court Program

By | Juvenile

Tarrant County Juvenile Drug Court ProgramLast week I wrote about things that every parent needs to know about kids and drugs. Today, I want to share with you a valuable resource to use if your child has gotten involved in drugs in Tarrant County. If your teenager has been charged in juvenile court with their first drug offense, you need to ask about the Tarrant County Juvenile Drug Court Program.

The Basics of the Program

The Drug Court Program in Tarrant County was launched in 1999. It was the first of its kind in the State of Texas. It is a voluntary program aimed at first time juvenile drug offenders. According to Tom Zaback, a Tarrant County juvenile probation officer and the supervisor of the program, 80% of the participants in Drug Court graduate the program successfully.

Juveniles in the program, and their parents, are required to commit a lot to Drug Court. This commitment to the program leads to a commitment to change, which contributes significantly to juveniles graduating from Drug Court and kicking their drug problem. While in Drug Court, which lasts for six months, juveniles and their parents will work closely with a probation officer and drug counselors in classes and groups that are tailored to meet the individual needs of each child.

The Process of the Juvenile Drug Court Program

Cases are screened automatically by the probation officers assigned to Drug Court to determine kids who may be appropriate for the program. However, if your child has been charged with a drug offense and you feel this may be a good option for him, you can ask your intake probation officer about being considered for inclusion in Drug Court.

Once a juvenile has been identified for the program, one of the Drug Court probation officers will schedule an intake with that child and his parents. During the intake appointment, the probation officer will explain the requirements of the program, get a social history from the family, and have the juvenile to take a drug test. The juvenile must also submit to a drug assessment during the screening process. This assessment will help to determine the level of that child’s drug problem and the recommended level of treatment needed. At the end of the screening, the probation officer will make a recommendation about whether that child should be allowed into Drug Court.

If a juvenile is recommended for Drug Court, the case is then sent to the Tarrant County District Attorney’s Office Juvenile Unit for prosecution. The prosecutor will review the case and file the charges with the court. The Tarrant County Juvenile Court will then schedule the case for a drug court hearing. At that hearing, the juvenile must stipulate, or admit, to the charges. The judge will enter a judgment withheld, which means that the judge will note that there is sufficient evidence to adjudicate the juvenile delinquent (or find him guilty), but will not, at that time, actually adjudicate the juvenile. The judge will then order him into the Drug Court Program.

Every juvenile in the program must come back to court for a judicial review at the 3-month mark and again at the end of the program. The purpose of this judicial review is for the judge to monitor the child’s progress in Drug Court. At the end of the six-month program, if the child has successfully completed all requirements, the judge will deny the prosecutor’s petition and order the child’s offense record to be sealed immediately. This is a huge benefit to the child because it means that he can honestly say to anyone asking in the future that he has not been charged or adjudicated for a drug offense. Sealing one’s record effectively erases it from existence.

The Requirements of the Tarrant County Juvenile Drug Court Program

As I mentioned above, while in Drug Court, a kid will be required to work with a probation officer and drug counselor to resolve any problems that he is facing with regards to drugs. There are other conditions that a juvenile in the program is required to follow, which are similar to the conditions of traditional probation. Some of these conditions are: no drugs, go to school, be honest, and attend treatment regularly. If a kid violates the terms of his Drug Court agreement, a progress report will be sent to the judge. If it is determined that a juvenile has violated the terms of the program to the extent that he is kicked out, he will be required to return to court for a disposition hearing. At this court hearing, the judge will enter a finding that the juvenile is adjudicated of the drug offense and then proceed to determine the appropriate punishment, or disposition, for the drug violation. This may result in the child being placed on traditional probation, being ordered to attend an in-patient drug treatment program, or in extreme cases, being sentenced to the Texas Juvenile Justice Department. Additionally, a driver’s license suspension will usually be ordered.

The Tarrant County Juvenile Drug Court is a wonderful program designed to help kids who are charged with a first-time drug offense. Its purpose is to help juveniles work through their drug problems while giving them a second chance to keep their juvenile record intact. The program is very successful. It requires a high level of commitment from the juveniles and parents who are in it, but that commitment is rewarded with a true change in the behavior, attitude, and lifestyle of that child. If your child is struggling with drugs, it is worth asking whether the Tarrant County Drug Court Program can help.

Oct 12
3
juvenile drug possession texas

Drugs, Kids, and Juvenile Justice in Texas

By | Juvenile

What Every Parent Needs to Know About Drug Crimes and the Juvenile Justice Process

juvenile drug possession texasOne of the most common way for teenagers to run afoul of the law is with drugs. Between peer pressure, synthetic drugs, and confusion over possession vs. ownership, there are many pitfalls surrounding the topic of drugs for kids. Many times, parents aren’t even aware their child has been exposed to drugs until that child is in trouble. Here are some basic things that every parents needs to know about kids and drugs before it’s too late.

Levels of Drug Offenses and Ranges of Punishment in Texas

In Texas, criminal offenses are divided into two major categories: Felonies and Misdemeanors, with felonies being the more serious. Except for possession of small amounts of marijuana or prescription drugs, all other drug offenses in Texas are felonies. This means that this is a very big deal if your child is arrested for drugs.

In the juvenile system, the punishment for misdemeanors ranges from nothing up to probation until that child’s 18th birthday. This probation can be served out at home. However, if appropriate, the court can order the child to a treatment facility, boys’ ranch, or some other kind of placement as part of the probation.

The punishment options for felonies in the juvenile system, like for misdemeanors, include doing nothing and probation up to a child’s 18th birthday (with or without placement outside of the home). For felonies, however, the court also can commit a child to the Texas Juvenile Justice Department (TJJD), which is the prison system in Texas for kids. A commitment to TJJD can last up until a child’s 19th birthday.

Synthetic Drugs – A Moving Target

Some of the most popular drugs in use today are synthetic or designer drugs. They go by a variety of nicknames including K2, bath salts, and Spice. These particular drugs are especially dangerous for a number of reasons. First, because they are a chemically altered variation of an illegal drug, they are legal in many cases. The legislature is still struggling to write the laws in such a way to criminalize all of these variations. As they make one chemical formula illegal, the chemists making these drugs alter it to escape prosecution. The law is making headway in this field, but it is a slow process. Because of this loophole, many of these synthetic drugs are legally sold in stores and over the internet. This makes it very easy for kids to get their hands on them.

The second reason why these drugs are particularly dangerous is because there is no way for a user to know what exactly is in the dose they are taking due to the rapidly changing chemical alterations that are being made to stay ahead of the law. The K2 your child takes today may be drastically different from the dose he took last week. There is also no way to know what side effects a specific chemical combination will have on a particular person or even the human body generally.

Part of the reason why these drugs are so popular with kids is because it is almost impossible to detect them. Because of the quickly changing chemical makeups of these drugs, it’s difficult to develop a drug test that can detect them all. Additionally, most parents have never heard of these drugs, which makes it easier for kids to get away with using them without their parents realizing what they are doing. This difficulty in detecting these drugs makes it more likely for kids to abuse these particular substances.

Prescription Drugs

Another category of drugs that has risen in popularity with teenagers is prescription drugs. These are used frequently by kids because they are easy to get their hands on. All they have to do is to go to the medicine cabinet at home and help themselves to whatever drugs are on the shelf. It doesn’t matter what the prescription is for or who it belongs to, it can be abused by kids. Teens have been known to sell and/or use pills prescribed for everything from ADD to depression to high blood pressure. When parents are unaware of the potential for kids to take these medicines, they are unlikely to secure them in order to keep them away from their teenagers. There have been several cases recently in Tarrant County where kids have been arrested at school for illegally selling or possessing a prescription drug that they took from their parents.

Ownership vs. Possession

When it comes to the drug laws, many kids are confused about the difference between ownership vs. possession. The law makes it illegal to possess drugs, regardless of who owns them. In fact, because drugs are considered “contraband,” the law doesn’t consider anyone to “own” them. Many kids, when busted for possessing drugs, will say, “But it’s not mine. I was just holding it for my friend.” They don’t understand that this means they are breaking the law, not their friend. Possession is defined as having care, custody, and control of something. This means that if you have the drugs in your pocket, you are in possession of them whether you “own” them or not.

Many “good kids” who wouldn’t dream of committing a crime will get caught holding drugs for their friends. Because they don’t understand that, if caught, they will be the guilty party and not their friend, they agree to hold onto the drugs for their buddy. It’s important that parents talk to their kids and explain this aspect of the law and the effect it can have.

Common Situations Where Kids Encounter Drugs

As I said at the beginning, drugs are a common reason why kids find themselves in the juvenile justice system and in alternative school for a period of time. It is a slippery slope that many teenagers find themselves on before they even realize what has happened. Below are some of the most common places for kids to encounter drugs.

1. School
Our kids spend a good deal of their time at school. By the time a kid gets into middle school and high school, a big chunk of their social circle is centered around school. School is also the place where they are likely to encounter a wide variety of different people. So, it’s no wonder, that it is also the place where many kids first encounter drugs. Not only do the school administrators and teachers have to be on the alert for drugs in school, but parents also need to be aware and be proactive in preparing kids to walk away when they encounter drug activity in the school environment.

2. Friends
When kids are in their preteen and teenage years, peer pressure is a very powerful force. Many kids are first exposed to drugs by their friends. Therefore, it is important, as parents, to know our kids’ friends and to be around them enough to pick up on whether these friends have a problem with drugs before our kids follow the same path. It’s also important for parents to consistently work on having that open communication with their kids so that, when the time comes, your kids can feel comfortable coming to talk to you about drugs and friends. Kids also need to know that if they are ever asked to hold onto to drugs for their friends, that they must say no, even if it means losing a friend over it.

3. Cars
Cars present a tricky scenario for kids when it comes to drugs. If your teen gets into the car with someone who has drugs, it is very possible that your child will get charged with the drugs if they are pulled over by police. When police and prosecutors are looking at who within a car to charge with possession of the drugs, they will many times look to the person who was sitting the closest to the drugs. If someone else in the car drops their stash of drugs near your child, then it may appear that your child was the one in possession.

This is a situation where parents need to talk to their children about how easy it is for them to be in a car with others and be held responsible for the actions of those other people. Kids need to be very careful about who they get into a car with. Parents need to prepare their kids to make the right decision when confronted with whether to get in a car with someone or not.

Conclusion

While it is common for otherwise “good kids” to get in trouble with the law when it comes to drugs, it is not inevitable. If parents take the time to educate themselves and their kids about the pitfalls that drugs can create, they can help their teenagers to avoid getting involved in the juvenile justice system.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Oct 10
3
Drug Found in Car Driver Charged with Possession

Do Drugs Found in a Car Automatically Belong to the Driver?

By | Drug Crimes

Between the Driver and Two Passengers, who is in Possession of the Drugs Found in the Middle Compartment in Plain View?

Drug Found in Car Driver Charged with PossessionThe Court of Criminal Appeals recently handed down an opinion dealing with legal sufficiency of evidence in the context of possession of a controlled substance when it was not found in the exclusive possession of the defendant. The issue facing the Court was whether Appellant Tate intentionally or knowingly possessed methamphetamine by exercising “control, management or care” of the methamphetamine and he knew it was methamphetamine. Tex. Penal Code §1.07(a)(39). The Court found that a rational jury could infer that the owner and driver of a vehicle possessed the controlled substance found in the vehicle in plain view even when there were two other passengers.

Tate v. State (Tex. Crim. App. 2016)

The Facts—Trial Court Found Sufficient Evidence

Tate was pulled over by Detective Beckham due to his outstanding warrants. When pulled over Tate had two passengers. Tate explained that he owned the vehicle but did not have any proof of ownership. Tate was arrested after officers confirmed his outstanding warrants. The police searched Tate, the two passengers, and their belongings, but did not find any weapons or contraband. During Officer Beckham’s inventory search of the vehicle, he found a syringe loaded with a substance later identified as .24 grams of methamphetamine. He found the syringe in “plain view” in a compartment underneath the air conditioner and heating controls.

Tate, the owner of the vehicle, was charged with possession of a controlled substance. At trial, Officer Beckham described the compartment as “directly to the right” of Tate, accessible to Tate and the front-seat passenger but not the backseat passenger. He also testified that even though he couldn’t tell exactly what the front-seat passenger was doing, he observed her moving a lot but never towards the compartment. Tate argued that one of the passengers put the syringe there when Tate was talking to Beckham at the rear of the vehicle. The trial court found Tate guilty, relying on Tate’s “self-purported” ownership of the vehicle and his proximity to the syringe.

The Court of Appeals Reversed the Trial Court’s Decision

The Court of Appeals held that there was “insufficient evidence to prove that Tate had intentionally and knowingly possessed methamphetamine.” The court rejected the proximity argument made by the trial court for two reasons:

  1. There was insufficient evidence to show the syringe was in the car before Tate got out.
  2. Officer Beckham observed the front-seat passenger moving a lot but couldn’t tell exactly what she was doing.

Additionally, the court said that since Tate’s ownership could not be proven it was insufficient evidence to prove possession.

The Court of Criminal Appeals Reverses the Court of Appeals—Holding Defendant’s Ownership and Control of Vehicle Where Controlled Substance was Found in Plain View and Within Defendant’s Reach is Sufficient Evidence to Convict for Possession of a Controlled Substance

The CCA held that a rational jury, with these facts, could reasonably infer that the syringe was in the car the entire time. In coming to that decision the Court relied on the fact that the jury believed Beckham’s testimony that he never saw her reach for the compartment, that the back-seat passenger could not reach it, Tate said he owned the vehicle, and that the syringe was found in plain view. Therefore, a rational jury could infer that Tate would be aware of items in his vehicle in plain view, thus find he intentionally or knowingly possessed the methamphetamine in the syringe.

In making this decision the Court relied on the Jackson standard: “Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The Court found that the court of appeals incorrectly applied this standard. The Court pointed to a few links that the jury could reasonably rely on to find Tate guilty, which include:

  1. the contraband was found in the vehicle that Tate owned and was driving;
  2. the contraband was in plain view and conveniently accessible to Tate; and
  3. the jury could reasonably believe Beckham’s testimony that the front-seat passenger did not reach over to the compartment and that the back-seat passenger could not reach the compartment.

Thus, when the standard is applied here a rational jury could find the evidence sufficient to find Tate intentionally or knowingly possessed the methamphetamine beyond a reasonable doubt.

Decision of the Criminal Court of Appeals—Evidence is Legally Sufficient Where a Rational Jury Could Infer Guild Beyond a Reasonable Doubt

The CCA found that the evidence at trial was sufficient for the jury to reasonably find Tate guilty beyond a reasonable doubt and that the court of appeals overstepped its bounds in assessing the legal-sufficiency of the evidence.

Oct 07
1
HL Hunt Mansion Dallas Hill v State

Dallas Oil Family’s Dismissal for Vindictive Prosecution Upheld on Appeal

By | Criminal Defense, White Collar

How Far Does the Trial Courts Discretion Go in Determining Whether to Hold a Pretrial Evidentiary Hearing?

HL Hunt Mansion Dallas Hill v StateOn September 21st the Texas Court of Criminal Appeals issued a decision on the oil tycoon heir Albert Hill III’s criminal appeal. The question the Court faced was whether it was in the trial court’s discretion to conduct a pretrial evidentiary hearing on Hill’s motions to quash and dismiss based on prosecutorial vindictiveness. The Court determined that it was within the trial court’s discretion to conduct such a pretrial evidentiary hearing and that discretion was not limited by the defendant meeting “a certain threshold evidentiary requirement.”

Court Opinion: State of Texas v. Albert Hill (Tex. Crim. App. 2016)

The Facts | Trial Court Finds Dallas DA’s Actions Improper

Appellant Hill is the great-grandson of legendary Dallas oil billionaire H.L. Hunt and the events surrounding the indictment dealt with a multi-million dollar trust litigation between Hill and his father. Hill and his wife Erin were indicted in 2011 for making false and misleading statements in order to obtain a $500,000 mortgage from Omni American Bank. The indictment came shortly after Hill won in the trust litigation against his father. Prior to the indictment (but after Albert Hill’s victory in the trust litigation) Hill’s father’s attorney, Michael Lynn delivered a memo to the Dallas County District Attorney’s Office which alleged various offenses committed by Hill and his wife. Hill challenged these charges by filing a motion to quash the indictment and a motion to dismiss. Hill argued that the District Attorney, Craig Watkins, was under the influence of his disgruntled father as well as Lisa Blue Baron, one of Hill’s attorneys in the trust litigation case that had just filed a lawsuit against Hill seeking several million dollars in legal fees.

Some items of interest that the court noted were:

  • Lisa Blue Baron exchanged several phone calls and text messages with Watkins leading up to the indictment;
  • Michael Lynn’s law partner donated $48,500 to Watkins’ campaign prior to the indictment;
  • Lisa Blue Baron made a $100,000 donation to SMU LAW in Watkins’ honor after the indictment;
  • Lisa Blue Baron also held a fundraising event for Watkins’ campaign at her house and made a $5,000 donation to the campaign.

The trial court held an evidentiary hearing on Hill’s motions and granted both the motion to quash and the motion to dismiss.

The Court of Appeals Reversed the Trial Court’s Decision

The Fifth Court of Appeals reversed the trial court’s dismissals holding that the trial court “erred in conducting a hearing on Hill’s motion to dismiss.” The State argued that the trial court should not have held a pretrial evidentiary hearing because Hill failed to prove, with evidence, a prima facie case of prosecutorial misconduct and vindictiveness. The Court of Appeals stated that before a pretrial evidentiary can be held for a defendant claiming a violation of his constitutional rights, the defendant must “present facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.” The Court of Appeals found that Hill did not sufficiently meet this standard.

The Court of Criminal Appeals Disagrees with the Court of Appeals, holds that Trial Courts Have Sound Discretion to Conduct a Pretrial Evidentiary Hearing

1. Article 28.01 – The CCA points to Article 28.01 in determining that the trial court had the discretion to hold a pretrial hearing on Hill’s motions to quash and suppress. Article 28.01 §1 provides that a trial court “may set any criminal case for a pre-trial hearing” and that some of things that the pre-trial hearing shall be to determine is the “pleadings of the defendant,’ ‘exceptions to the form or substance of the indictment,’ or discovery.’” Article 28.01 §1(1), (2), (4), (8). Additionally, while Article 28.01 does not expressly provide for an evidentiary hearing on a motion to dismiss like it does for a motion to suppress, the Court determined that it would be a misapplication of the rules of statutory construction to decide that oral testimony cannot be used in a pretrial hearing to resolve any other issue raised.

2. Case Law – The Court supported its Article 28.01 decision with the Court’s decision in Neal v. State which held that a defendant is required to “preserve a complaint of vindictive prosecution by filing a pretrial motion to quash and dismiss.” 150 S.W.3d 169. With that decision in mind the Court said “it would make no sense to limit the trial court’s discretion to hold an evidentiary hearing on such motion.”

The State pointed to federal case law that provided defendant must make a prima facie case that raised a reasonable doubt. However, these cases dealt with the issue of whether the trial court erred by denying a pretrial hearing. Thus, the Court stated that this case law is not on point in Hill’s case and thus are not controlling on this issue, and do not persuade the Court to hold otherwise.

Decision of the Criminal Court of Appeals | The Trial Court’s Discretion is Not Limited

The CCA determined that Article 28.01 has no limiting factor on the judge’s discretion to hold a pretrial evidentiary hearing based on any threshold evidentiary standard. Accordingly, the trial court did not err in conducting the pretrial evidentiary hearing in Hill’s case but instead acted within its bounds of sound discretion.

Oct 05
5
Evil Clown Scare Texas

Hold Your Fire…Don’t Shoot the Clowns! Yet.

By | Self-Defense

Evil Clown Scare TexasRecently, a friend asked me if it was legal for individuals to dress as clowns and scare the public. He also wanted to know what would happen if he were frightened by one of these clowns and shot the clown. While not asking the latter in complete seriousness, these questions do bring up potential criminal law issues.

Is it Legal to Dress as a Clown in Public?

There’s no state law that we’re aware of that makes dressing up like a clown in public per se illegal.

The only potential laws that may be applicable to these situations would be individual city ordinances. A search of city codes in a handful of Texas towns around the Metroplex reveals no ordinance specifically prohibiting dressing like a clown in public. The only codes we are able to find related to costumes primarily had to do with a prohibition on costumes which fail to cover private areas in regards to sexually oriented businesses.

While dressing like a clown doesn’t appear to be per se prohibited, there is certainly the risk of breaking other laws while dressed as a clown. In addition, dressing like a clown in public and creating unnecessary alarm or panic could be deemed as disorderly conduct.

Texas Penal Code, Chapter 42 lays out a list of behaviors that could constitute up to a Class B misdemeanor. Class B misdemeanors can carry a penalty of up to 6 months in jail and up to a $2,000 fine. Sec. 42.01 (a)(2) states that a person commits an offense [of disorderly conduct] if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. An offense of this nature is a Class C misdemeanor and carries the possibility of up to a $500.00 fine.

Can I use Deadly Force Against the Clown?

Let’s start with the simple answer of “NO”. While individuals may be suffering from coulrophobia (the fear of clowns), this condition does not give you a right to use deadly force – or any force for that matter – against an individual simply because he or she is standing in public dressed as a clown.

The more complex answer of “maybe” would have to do with the use of force for self-defense purposes. Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. Under this law, the actor must reasonably believe that the force is reasonably necessary to protect against the other’s use or attempted use of unlawful force. Simply observing a clown, with no weapon or threat to use a weapon, provides no grounds to use force – much less deadly force – against that clown.

In addition, the Penal Code does establish that force may be used to protect one’s own property. A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…” However, the use of deadly force to protect one’s own property is limited. “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement]. Tex. Penal Code Section 9.42.

Using force for self-defense purposes is a serious response to dangerous and threatening situations – but certainly not an appropriate response to being “creeped” out.

Bottom Line | Do Not Shoot the Clown (Yet)

Dressing up as a clown and causing fear amongst the public is a stupid (and perhaps even illegal) idea. Our attorneys would advise you strongly against it. You certainly place yourself in the position of having your behavior scrutinized by law enforcement for any potential illegal activity. And, if you’re simply afraid of clowns, do your defense attorney a favor and please do not shoot them.  BUT…If the clown lays a hand on you or chases you through a park, all bets are off. You may use force against the clown to avoid an assault.

Oct 04
2
Juvenile Certification Process in Texas

Juvenile or Adult? The Juvenile Certification Process in Texas

By | Juvenile

The Nuts and Bolts of the Juvenile Certification Process

Juvenile Certification Process in TexasThe juvenile court has exclusive jurisdiction over offenses committed by juveniles (children ages 10-17)  in Texas. The only exception to this, according to Texas Family Code Section 54.02, is when the court waives its jurisdiction and transfers a juvenile to an adult district court to face the adult criminal justice process. This is what is called certifying a juvenile as an adult. The Family Code lays out a process for when and how a juvenile may be certified.

The Process of Certification

Family Code Section 54.02 actually lays out two different processes for certification. One process is for cases in which the charged person is still a juvenile. The other one is for cold cases where the person accused was a juvenile at the time of the offense, but became an adult prior to the time the case went to court. This latter process is commonly referred to as a post-18 certification.

In all cases, per Section 54.02(a), the juvenile court may certify someone as an adult ONLY if the following factors are met:

  1. the alleged offense is a felony
  2. the child was 14 or older at the time of the offense if the alleged offense was a first degree felony, a capital felony, or an aggravated controlled substance felony or the child was 15 or older for any other felony
  3. no adjudication hearing has taken place for that offense, and
  4. during a hearing, the court finds that there is probable cause to believe the juvenile committed the offense.

Additionally, in all cases, the court must order, prior to the hearing, a complete diagnostic study to be done on the juvenile, which is to include information about his circumstances and the circumstances of the crime. This study must then be given to the court, prosecutor, and defense attorney prior to the hearing. This is required by Section 54.02(d) and (e).

The “Normal” Certification Process in Texas

If the person who is the subject of a certification proceeding is under the age of 18 at the time of court, under Section 54.02(a), the court must determine whether the welfare of the community requires the child to be certified as an adult due to either the seriousness of the offense or the background of the child. In making this determination, the court must take into account, along with other things, whether the crime was committed against a person or property, the sophistication and maturity of the child, the record and previous history of the child, the potential of adequate protection of the public, and the likelihood of appropriate rehabilitation of the child using the resources and services available in the juvenile system. These factors are laid out in Section 54.02(f).

Post-18 Certification in Texas

For cold cases, in which a person was a juvenile at the time of the offense, but is now an adult, the process is a little bit different. For these cases, the certification process is the only avenue available for prosecution. According to Section 54.02(j), in addition to the factors listed above regarding age and probable cause, which must be met in every certification case, the court must also find that either:

  • because of a reason beyond the control of the State, it was not practicable to proceed prior to the person’s 18th birthday or
  • after due diligence on the part of the State, it was not practicable to proceed with the case prior to the person’s 18th birthday because the State did not have probable cause and new evidence has been discovered since the 18th birthday.

Who Decides on Certification?

Initially, the District Attorney’s Office makes the decision whether to seek certification. If they decide to seek certification, then a hearing will be held. At the hearing, the juvenile court judge will be the person to determine whether the juvenile will be certified. There is no jury at a certification hearing. In Tarrant County, the juvenile prosecutor who is assigned to the case is the person who decides whether to pursue certification.

Across the state of Texas, certifications make up only a small percentage of juvenile cases. Most cases are kept in the juvenile system. In Tarrant County, there are only a handful of certification hearings held each year. Most of those are post-18 certifications on sex cases where the victim did not outcry about the offense until after the juvenile charged was 18 or older. On average, there are less than 5 certifications of juveniles who are still under the age of 18 per year in Tarrant County.

Possible Defenses to Juvenile Certification

Because the State must only prove by probable cause that the charged juvenile committed the offense, it is unlikely that defenses to the offense itself will be successful at a certification hearing. However, there are some other areas where a defense attorney can attack. In cases of a post-18 certification, the best possible avenues for the defense would be to attack the age of the juvenile at the time of the offense or the due diligence of law enforcement to investigate the case.

For normal certifications, a defense attorney should look to areas such as the maturity of the juvenile, and the likelihood of rehabilitation of the juvenile through the resources available in the juvenile system. A defense attorney should also highlight the positive aspects of the juvenile’s background, including responsible adults who could provide appropriate support and supervision for that child, positive educational and extra-curricular activities, and any treatment or mentoring that the child has had in the past which showed positive results. An attorney should also be pointing out things such as a low IQ, any mental health diagnosis, a lack of treatment for those problems, and how available resources within the juvenile system would be the best approach to address those things.

Legal Ramifications of Certification

If the juvenile court waives its jurisdiction and certifies a juvenile as an adult, the case will be transferred to adult court. From there, it will be treated as an adult case for all intents and purposes. The prosecutors must present the case to a grand jury for indictment. Adult punishment ranges will apply.
If, however, the juvenile court denies certification on an accused person who is still a juvenile, the case can still be pursued by the prosecution in juvenile court. In those post-18 certifications, if the court denies the certification, then the case is dead because the court will no longer, at that point, have jurisdiction over the person accused due to their age.

Certifying a juvenile as an adult is something that does not happen a lot in the State of Texas. It is even more rare in Tarrant County. However, when it does happen, there is a specific procedure laid out in Family Code Section 54.02 which must be followed in order for the certification to happen. The prosecutor gets to decide whether to seek certification, but it is up to the juvenile court judge to determine whether it will be granted. If granted, from that point on, the case and the juvenile will be treated as an adult and will be prosecuted in the adult system.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Sep 30
3
Stop and Frisk Furr v. State 2016

Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

By | Reasonable Suspicion, Search & Seizure

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Stop and Frisk Furr v. State 2016Furr v. State (Tex. Crim. App. 2016)

On September 21st the Criminal Court of Appeals decided Furr v. State. In Furr, the Court held that an anonymous tip was sufficiently corroborated to establish reasonable suspicion to stop and frisk Appellant Furr. To support the stop and frisk, the court noted that Appellant:

  • watched the officer as he drove by,
  • repeatedly looked at the officer as he walked away,
  • was nervous, anxious and sort of out of it,
  • appeared under the influence of drugs, and
  • did not initially respond as to whether he was armed.

Further, the Court stated it is not per se objectively reasonable for a police officer to execute a pat down of a suspect for weapons simply because they are accused of drug possession.

The Facts of Furr v. State

Corpus Christi Police Department received an anonymous tip that two men were doing drugs on a particular street corner, one dressed in all black and the other in a black shirt carrying a brown backpack. In response, an officer drove past the street corner. He observed two men that fit the description from the tip and noticed in his rearview mirror that the men were watching him as he drove by. The officer then approached the two men but one of the men, Furr, walked away into the nearby shelter, repeatedly looking over his shoulder at the officer. The officer described Furr’s actions as furtive, “like he was trying to get away.”

When another officer arrived, the officers made contact with Furr. Furr was described as nervous, anxious, evasive, and was sweating excessively. Furr did not respond when the officers initially asked if he had any weapons on him. Officers said he appeared “kind of out of it” and “like he was under the influence of a drug. As a result, for safety reasons, officers frisked Furr for weapons and found a glass crack pipe in Furr’s front pocket. When removing the pipe, the officer also found two syringes, and after arrest, two small balloons of heroin.

Furr was charged with possession of a controlled substance. He pled guilty, reserving his right to appeal after his motion to suppress was denied. Furr argued on Appeal that officers did not have reasonable suspicion to stop and frisk him and that the trial court erred by not granting the Motion to Suppress the search.

The Court of Appeals Affirmed the Trial Courts Decision

The court of appeals held that Furr’s nervousness coupled with the observation that he seemed to be under the influence of a drug sufficiently corroborated the tip to support the investigative detention and that Furr’s failure to initially respond about being armed coupled with the other circumstances justified the frisk.

The Criminal Court of Appeals Concluded that there Was Reasonable Suspicion to Detain and Frisk Furr.

1. The Analysis of the Detention

In order to detain a person, the police officer must have reasonable suspicion based on “specific articulable facts, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). Anything that happens or that is observed before the detention will be considered in determining whether the officer indeed had reasonable suspicion to detain Furr.

Furr argued that the anonymous tip alone was not enough.  The Court, however, explains that if there had only been the anonymous tip, it would not have established reasonable suspicion, but here there was more. The Court identifies several independent observations:

  • Furr and the other man were at the specified location and matched the informant’s description.
  • The area was a “high drug, high crime” area.
  • Furr and the other man watched the officer as he drove past
  • When the officer approached the two, Furr walked away “furtively.”
  • When the officers came upon Furr in the shelter he was sweaty, nervous, anxious, and appeared out of it as if he was under the influence of a drug.

Thus, the reasonable suspicion here was not solely based on the informant’s tip, but instead that tip was corroborated by independent observations made by the police officers. Looking at the totality of these circumstances, the Court held that the officers had reasonable suspicion to stop Furr and investigate the information from the anonymous tip that Furr and the other man were using and possessing a drug.

2. The Terry Frisk

The Court rejected the State’s request to adopt a rule that it is, “per se, objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs,” because reasonable suspicion to frisk a suspect cannot be established by accusations of drug possession alone.

The Court further rejects the State’s argument that the officer was objectively justified in patting Furr down for weapons because this was outside of a homeless shelter for two reasons: 1) Nothing in the record shows that the shelter was a homeless shelter; and 2) Even if it was a homeless shelter, the Court does not see a correlation between being armed and dangerous and being at a homeless shelter.

Even so, the Court ultimately agrees with the court of appeals that reasonable suspicion was established here because the anonymous tip was corroborated by all of the circumstances surrounding the officers’ interactions with Furr. Specifically, the Court noted the tip, personal observations by the officers and the high drug, high crime area would warrant a belief that the safety of officers and others was in danger.

DISSENT – Stop and Frisk Should Have Been Held Unlawful

Judge Meyers dissented from the majority and opined that the stop and frisk of Furr was unlawful and that the motion to suppress should have been granted. Judge Meyers concluded that neither Furr’s action of looking over his shoulder or the anonymous tip, alone or combined, were sufficient to establish reasonable suspicion. Thus, there was no need to analyze the legality of the frisk. Judge Meyers believes that the majority made its decision “not based on law but on the feeling that Furr should not get relief.”