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Criminal Defense Archives | Page 2 of 3 | Howard Lotspeich Alexander & Williams, PLLC

May 19
1
Co Defendant Suppression New Trial Arizmendi

When a Co-Defendant’s Wins a Suppression but You Already Pled Guilty

By | Criminal Appeals

“Buyer’s Remorse”—Rolling the Dice on Plea Deals

Co Defendant Suppression New Trial ArizmendiThe Court of Criminal Appeals recently handed down an opinion concerning a motion for a new trial based on evidence obtained from a co-defendant’s motion to suppress hearing. The issues facing the Court were whether the defendant, who had recently entered into a plea deal, satisfied the requirements for granting a new trial on the basis of such evidence; and, whether the defendant’s ineffective assistance of counsel claim was properly brought before the court.

State of Texas v. Arizmendi (Court of Criminal Appeals, 2017)

The Facts — Trial Court Granted Defendant’s Motion for New Trial in the “Interest of Justice.”

Rosa Arizmendi, Defendant, was convicted (after pleading guilty) for being in possession of more than 400 grams of methamphetamine with intent to deliver after officers stopped her co-defendant’s vehicle, of which she was a passenger. Both Defendant and Co-defendant were arrested as a result of the stop. On April 28, 2015, Defendant entered into a plea deal, receiving twenty-five years confinement and a $5,000 fine. Additionally, Defendant voluntarily waived her right to appeal.

Six days later, a hearing for a motion to suppress was held regarding Co-defendant’s case. The video of the stop was introduced into evidence, and the arresting officer testified, noting that he initially noticed the vehicle because it looked clean and subsequently stopped the vehicle for crossing over the while line delineating the roadway from the improved shoulder. However, the trial court concluded that Co-defendant’s vehicle was not in any violation of Texas law. The Court explained that the vehicle only came in close proximity of and possibly touched the inside portion of the white line, which is not a violation of Texas law. Thus, granting Co-defendant’s motion. See, State v. Cortez, 501 S.W.3d 606 (Tex. Crim. App. 2016).

Based on this information, Defendant filed a motion for new trial, “in the interest of justice,” alleging the verdict in her case was contrary to the law and evidence. Defendant’s motion referred to Co-defendant’s hearing alleging a lack of probable cause or other lawful reasons for the stop. Furthermore, Defendant asserted the officer’s testimony was new evidence not available at the time of Defendant’s guilty plea. Defendant’s counsel further asserted that because she failed to tell Defendant that a motion to suppress was an option, Defendant received ineffective assistance.

The State argued that Defendant waived her right to appeal as a result of the plea deal and had not presented any new evidence likely to result in a different ruling. Noting, all evidence could have been discovered had Defendant been diligent. The State further asserted that Defendant was merely suffering from “buyers remorse.” Moreover, the State contended Defendant’s ineffective assistance claim was not apart of the original motion for new trial and, therefore, was untimely. However, the trial court rejected these arguments and granted Defendant’s motion for new trial “in the interest of justice,” and the State appealed.

The Court of Appeals Affirmed the Trial Court’s Decision — Holding Defendant Satisfied the Requirements for Granting a New Trial Based on Newly Discovered Evidence.

On appeal the State contended that the trial court abused its discretion in granting Defendant’s motion and further reiterated its previous assertions.

The Court of Appeals, however, rejected the State’s arguments. The Court held Defendant’s motion was not barred because the trial court implicitly granted Defendant permission to appeal when it set Defendant’s motion for hearing. The Court also determined Defendant did, in fact, present new evidence. The video of the stop did not contain audio and, therefore, the testimony was new because it was not available at the time of Defendant’s plea. Accordingly, since the Court found there was new evidence they declined to rule on the ineffective assistance claim and affirmed the trial court’s ruling.

The Court of Criminal Appeals Reversed and Remanded — Holding Defendant did not Satisfy the Requirements for Relief.

The State appealed again and the Court of Criminal Appeals reversed the lower courts’ decisions. Here, Defendant pled guilty pursuant to a plea deal and after learning of her co-defendant’s favorable outcome Defendant filed a motion for new trial. The Court concluded that Defendant’s assertions were without merit because her failure to discover “new evidence” was a result of her own lack of due diligence. Furthermore, the “new evidence” Defendant asserts was either cumulative, collateral, or would not have brought about a different result.

To obtain relief the Court noted Defendant must satisfy the following four-prong test:
• The newly discovered evidence was unknown or unavailable to Defendant at the time of trial;
• Defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
• The new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and,
• The new evidence is probably true and will probably bring about a different result in a new trial.

Defendant asserted the following as newly discovered evidence:
• The trial court’s ruling on Co-defendant’s motion to suppress;
• The testimony of the arresting officer at Co-defendant’s suppression hearing; and,
• The arresting officer’s statement about Defendant’s vehicle being a clean vehicle.

First, the Court explained that the trial court’s ruling on the motion to suppress was not evidence; it was only a legal determination. And, furthermore, even if it was considered evidence Defendant’s failure to discover was due to her own lack of due diligence. Second, the officer’s testimony was evidence, but aside from the testimony regarding the clean vehicle, it was merely cumulative and Defendant had access to the video, which conveyed the very same facts as the testimony. Furthermore, the Court determined the officer’s testimony regarding the clean vehicle was collateral, at best. The Court explained that the officer’s subjective intent was irrelevant to the ruling. Moreover, Defendant could have sought a police report or even filed her own motion to suppress to obtain such evidence—just as her co-defendant did. Finally, the Court concluded that Defendant’s ineffective assistance claim was not properly before the court because it was not made within thirty days of the judgment and, therefore, was untimely.

Thus, all evidence Defendant asserts as “new” was either cumulative, collateral, or would not have brought about a different result. As such, the Court reversed the lower courts’ decisions and remanded with instructions to reinstate Defendant’s judgment and sentence.

This case prompted two concurring opinions and a dissent. See below.

Arizmendi Hervey Concurrence
Arizmendi Newell Concurrence
Arizmendi Alcala Dissent

Takeaways

It is paramount that defense attorneys review all evidence and timely seek any additional evidence that may be relevant to a client’s case. Moreover, it is crucial for attorneys to provide clients with all possible options and outcomes before entering into a plea deal. Here, Defendant had all the same options as her co-defendant; however, Defendant was not properly counseled and, consequently, Defendant will spend twenty-five years in prison while her co-defendant remains free.

May 11
9
Animal Cruelty Texas Animal Abuse

Animal Cruelty Laws in Texas | Cruelty to a Non-Livestock Animal

By | Animal Cruelty

Animal Cruelty Texas Animal AbuseTexas is home to many animal owners. Whether residents own household pets, like cats and dogs, or livestock, most animal owners are responsible and ensure that their “fur babies” are provided with proper care. However, there are times when cases arise involving individuals who abuse or neglect their animal or someone else’s. If this occurs, there may be grounds for a police investigation and serious criminal charges. So, what conduct falls under animal cruelty laws in Texas and what are the potential criminal consequences?

What Constitutes Animal Cruelty?

Animal cruelty laws in Texas apply to domesticated animals, which are further divided into two categories:

  • Livestock animals
  • Non-livestock animals

Cruelty to non-livestock animals accounts for a majority of animal cruelty cases and, therefore, a proper understanding of Section 42.092 of the Texas Penal Code, governing animal cruelty to non-livestock animals, is essential.

Non-livestock animals are generally what most people would consider “household pets.” Section 42.092 defines a non-livestock animal as a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. This would include dogs, cats, rodents and reptiles. Generally speaking though, animal cruelty laws do not apply to wild animals that are not captured—such as deer, wild hogs, mountain lions, etc.

Section 42.092 encompasses an array of behavior that is considered animal cruelty to non-livestock animals. To be charged with animal cruelty under this section, a person must have performed these “cruel acts” intentionally, recklessly or knowingly. The types of cruel behavior the statute covers include:

  • Torturing an animal (causing unjustifiable pain or suffering);
  • Killing an animal in a way that is considered cruel or leads to serious bodily injury of the animal;
  • Administering poison to an animal;
  • Failing to provide a reasonable amount of food, water, care and shelter to an animal;
  • Abandoning an animal;
  • Transporting or confining an animal in an unreasonable or cruel way;
  • Causing an animal to engage in a fight with another animal (if the animal is not a dog—dog fighting has its own Section in the penal code);
  • Without the owner’s consent, causing bodily injury to an animal;
  • Using a live animal as a lure in a dog race; or,
  • Seriously overworking an animal.

Some of these definitions are broad and can potentially cover a wide range of abuse.

Potential Consequences

Misdemeanor Animal Abuse

A person who intentionally, knowingly or recklessly fails to provide a reasonable amount of food, water, care and shelter; abandons an animal; transports or confines an animal in a cruel manner; causes bodily injury to an animal; or seriously overworks an animal will be punished with a Class A misdemeanor.

An individual convicted of a Class A misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000. Additionally, a person who has been previously convicted two times for animal cruelty will have their punishment enhanced to a state jail felony. (see below for definition)

Felony Animal Abuse

3rd Degree Felony: A person who intentionally, knowingly or recklessly tortures; kills; administers poison to or causes serious bodily injury of an animal may be guilty of a Third Degree Felony. An individual convicted of a Third Degree Felony may be sentenced from 2 years to 10 years in prison and a fine up to $10,000.

A person who intentionally, knowingly or recklessly causes one animal to fight with another; or, uses a live animal as a lure could be punished with a State Jail Felony. A State Jail Felony may be sentenced from 180 days and up to two years in a state jail facility and a fine up to $10,000.

Additionally, a person who has been previously convicted two times for animal cruelty will have their punishment enhanced by one felony degree.

Defenses

Section 49.092 of the Texas Penal Code provides several defenses to prosecution of animal cruelty of non-livestock animals. For example, it is a defense if:

  • The animal is killed in self-defense;
  • The animal is killed or injured upon discovering the animal injuring or killing the person’s livestock or damaging the person’s crops;
  • The conduct occurs for legal hunting or agriculture practices; or
  • The conduct occurs for true scientific research.

While there are many potential defenses, a conviction for animal cruelty can be extremely serious and it may jeopardize a person’s future animal ownership rights. Thus, it is essential to seek help if you have or may be charged with animal cruelty.  Contact our team of criminal defense attorneys for a free consultation about your animal cruelty allegation.

May 08
6
Texas Grand Jury What is a Grand Jury

What is a Grand Jury? | The Role of the Grand Jury in Texas Criminal Law

By | Grand Jury

Texas Grand Jury What is a Grand JuryYou may hear on the news that a case is going to the Grand Jury and wonder, What exactly is a Grand Jury? Is a grand jury to same thing as a regular jury? Can does a grand jury have special powers that a regular jury doesn’t have? Where does a grand jury fit into my case? This article seeks to answer those questions and clear up some of the myths about grand juries in Texas.

What is a Grand Jury?

A grand jury is group of 12 citizens that review felony criminal charges to determines whether probable cause exists for the case to continue forward. This is NOT the same type of jury that hears the case at trial.  The Grand Jury does not decide guilt or innocence, only probable cause. If the grand jurors determine that there is probable cause, then they vote to indict the case. An indictment is an essential part of every criminal case. If the grand jurors determine that there is not probable cause to believe an offense has been committed by the named defendant, then they vote to issue a no-bill. A no-bill typically means the case is dismissed and the District Attorney will not proceed with prosecution of the case.

How are the Grand Jurors Selected to Serve?

Prior to 2015, grand juries were chosen by “jury commissioner” appointed by district court judges. This process was known as the “pick-a-pal” system. The law changed in September 2015 and now grand jurors are selected in a random fashion, akin to the trial jury selection system. The jury pool is taken from registered voters in the county in which the court presides. Prospective jurors cannot have been convicted of any felony offense or a misdemeanor involving moral turpitude (like theft). They must also not have any criminal charges pending against them.

What is an Indictment?

An indictment is the formal accusation of a crime, issued by a grand jury. Prior to an indictment, the district attorney typically makes an allegation through a complaint. A complaint can become an indictment only after the grand jury votes to issue the indictment.  Only an indicted felony case can proceed to trial (where the real jurors decide whether a defendant is guilty or not guilty).

What is a No-Bill?

If a grand jury decides that a felony charge is not supported by probable cause, then it votes to return a no-bill on the case. This literally means that there was “no bill of indictment” issued. Sometimes, instead of a complete no-bill, a grand jury will indict a lesser-included charge, taking the felony to a misdemeanor.

The Mechanics of the Grand Jury Process in Texas

It is important to understand that the grand jury process is a secret proceeding. The defendant and his attorney do not have a right to be present in the hearing room or to present evidence unless the district attorney permits them to make a presentation. It is discretionary for the DA to allow either a paper submission or live testimony offered by the defense. During the grand jury hearing for a particular case an Assistant DA will explain the charge and the legal elements that the state is required to prove. The ADA will then run down the evidence from the police report and other video/audio recordings, giving the grand jurors a brief synopsis of the facts. The jurors can ask questions of the ADA and request further evidence if needed. In some cases, the ADA will call witnesses like police officers or victims to give testimony regarding the alleged offense. Most cases can be completed with the grand jury in a matter of hours, but the occasional complex case might take longer.

How is a Grand Jury Difference from a Regular Jury?

The grand jurors serve a term (approximately three months), usually coming to the courthouse a couple of day each week. A regular jury comes for jury service and will only hear one case. A grand jury only hears a brief version of the facts from the side of the state while the regular trial jury will hear the full version of the facts from both sides as well as cross-examination of the witnesses. Grand jurors can only vote to indict or no-bill. They cannot find a person guilty or not guilty – only a trial jury can do that. So, in a sense, the trial jury actually has the “grand” power.

Should the Defense Make a Grand Jury Presentation?

In our experience, it can be incredibly helpful to make a defense presentation to the grand jury. This can mean the difference between a felony indictment, a misdemeanor lesser charge, or a complete dismissal. Sometimes the best presentation is a written presentation and other times the defense would be better served to address the grand jurors in person. It really depends on the case and the overall strategy of the defense team. Grand jurors like to ask questions, so being there to answer them is usually a good thing (if you have good explanations).

Jan 15
2
Theft By Deception Texas

Justice of the Peace Convicted of Theft By Deception for Use of Airline Voucher

By | Theft

Theft By Deception?  County Official Uses Airline Flight Voucher (Purchased with Government Charge Card) to Buy a Plane Ticket for his Son.

Theft By Deception TexasIn Fernandez v. State, the Texas Court of Criminal Appeals considered the case of a Val Verde County Justice of the Peace who used an airline voucher for a flight that was unrelated to a government purpose.  The CCA discusses the offense of Theft by Deception in Texas, explaining what it means and what it doesn’t mean.  It is an interesting case because it seems so petty – the amount was only 300 dollars and some change.  Why didn’t the JP simply purchase a new ticket for his son?  Read more.

Travel Plans Arranged

James Fernandez was charged with “theft by deception” in 2012. Fernandez, serving as a Justice of the Peace in Val Verde County, wanted to travel to Orlando, Florida for a work-related conference in June of that year. After obtaining permission to travel to the conference and to use his government-issued credit card for airfare, Fernandez asked his office clerk to book the flight. The clerk made flight arrangements with Southwest Airlines.

Travel Plans Cancelled

Just before the conference, Fernandez became ill and cancelled his flight itinerary. Per Southwest Airlines’ refund policy, the airline issued a “refund-voucher” to Fernandez, in his name, valid for travel until February 2013. The refund-voucher was valued at $381.60, a dollar-for-dollar match to the amount originally paid for the ticket to Orlando.

In August, Fernandez asked his office clerk for the flight information from the cancelled Orlando trip. Once the clerk located the information, Fernandez told the clerk to give the flight reservation number to his son, Fernandez Jr.. The clerk complied.

Routine Audit Leads to an Investigation

During a routine review of the County’s flight budget, the County Auditor contacted Southwest, attempting to get a full refund of the flight. At that time the Auditor learned that the refund-voucher from the Orlando ticket had been used by Fernandez for a flight to Phoenix, Arizona in August. The auditor also learned that Phoenix flight incurred additional fees, fees that were not paid for by the county. Relying on Val Verde County’s policy that prohibits the use of county property for personal use, the auditor reported the transaction, triggering an investigation by the Attorney General.

Too Late to Repay, Fernandez Goes to Court

Soon after, Fernandez tried to pay for the airline voucher, but the auditor refused to accept his payment. Fernandez was charged with “theft by a public servant by way of deception.” At trial, Fernandez Jr. testified that his father had intended to repay the county, nevertheless, Fernandez was convicted—a conviction upheld by the Fourth Court of Appeals. Fernandez appealed to the Court of Criminal Appeals (“CCA”) for relief, arguing that State failed to prove he induced consent by way of deception at the time he misappropriated the government’s refund-voucher. The CCA must determine whether Fernandez committed “theft by deception” when he purchased online airfare for government-related travel with a government credit card, but canceled, using the refund-voucher for personal travel without “correcting the impression” that the refund-voucher would be used for future government-related travel.

What is Theft by Deception Under Texas Law?

Texas law defines theft as, “the unlawful appropriation of property with the intent to deprive the owner of the property.” Tex. Penal Code § 31.03(a). “Appropriation is unlawful if it is without the owner [of the property’s] effective consent.” Id. § 31.03(b)(1). Consent is defined as, “assent in fact, whether express or apparent,” and is “not effective if it is induced by deception or coercion.” Id. § 1.07(a)(11); §31.01(3)(A). Deception means, “failing to correct a false impression…fact that is likely to affect the judgment of another in the transaction, that the actor previously created…by words or conduct, and that the actor does not now believe to be true.” Id. § 31.01(1)(B). The burden of proof is on the State to prove “that the owner of the misappropriated property was induced to consent to its transfer because of a deceptive act of the defendant.” Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011); Daugherty v. State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013).

The CCA Decides

Here, the CCA explains that “consent” is a key issue—that the initial consent Fernandez received from his office to use the government credit card to make the flight reservation was not the consent that is the basis of the conviction. Rather, it was the consent Fernandez obtained when he asked his clerk to send the information to his son, “because without the voucher number, Fernandez would have been unable to access the [information]” to book the flight to Phoenix. Further, the county, by way of its agent [the clerk], assented to the refund-voucher’s use because the agent gave the cancelled flight information to Fernandez and his son in August.

Moreover, the CCA says that the consent was obtained through deception. Fernandez established with his office that he would be attending a work-related conference in June, thus creating the impression that county funds were being used for a work-related purpose. Once the flight was cancelled, the refund-voucher that was issued is to be considered the county’s property, “just as the ticket to Orlando had been [considered county property].” Fernandez failed to correct the impression that he was using the ticket/refund-voucher for work-related travel, instead using the refund-voucher for personal travel without telling anyone in the Val Verde County’s business office. “By remaining silent, [Fernandez] left intact the impression he created…that the [refund-voucher] would be used for county-approved travel.” The CCA affirmed the decisions rendered by the trial and appeals courts.

Judge Johnson filed a concurring opinion that simplified the majority’s opinion. “When [Fernandez] failed to…tell the county….that he had not used the original ticket…and [did not] surrender the voucher, [Fernandez] failed to correct the impression of appropriate travel on county business that he had previously created.” This alone was the deception that is required to support the conviction.

_______

Barnett Howard & Williams PLLC is a criminal defense law firm in Fort Worth, Texas.  Our criminal defense attorneys handle all felony and misdemeanor offenses in Tarrant County and surrounding areas.  For more information about our attorneys, visit our Firm Profile page.

Sep 16
0
Fort Worth Keller DWI Attorneys

DWI Intox Manslaughter Case Reversed Due to Drunk Victim

By | DWI

Causation Difficult to Prove In DWI Intoxication Manslaughter Case | Fort Worth DWI Attorneys

Fort Worth Keller DWI AttorneysOne of the key issues in any criminal case is causation. In order to be found guilty of a crime, a defendant’s actions must be found to have been the cause of the criminal act. While causation may seem like a simple thing to prove, causation may depend as much on the actions of the victim as on the actions of the defendant.

Saenz v. State (14th Court of Appeals, August 2015)

FACTS: Monika Saenz was driving her truck around 3:00 a.m. when she struck Jose Torres, Jr., killing him. Blood drawn over an hour after the accident yielded a blood alcohol concentration (BAC) of .172 for Saenz. The autopsy of Torres determined that his BAC was also .172 at the time of the accident and that he had used marijuana and cocaine prior to his death.

Saenz was convicted of intoxication manslaughter and accident involving injury or death. There was no question as to whether Saenz’s truck hit Torres. Saenz’s only defense was concurrent causation: If Torres’ conduct was clearly sufficient to produce the accident that resulted in his death, and Saenz’s conduct was clearly insufficient to produce that result, then Saenz should be acquitted under the theory of concurrent causation.

Saenz pointed to many features of Torres’ conduct that were sufficient to cause the accident. He was walking in the road in dark clothes while intoxicated in the middle of the night; there was no evidence that Saenz’s car ever left the roadway; Torres was walking on the wrong side of the road; and Saenz was not speeding at the time of the accident. Saenz’s position was that her driving while intoxicated was insufficient to cause Torres’ death because even a sober driver would have struck and killed Torres given his conduct.

As part of her concurrent causation defense, Saenz attempted to admit evidence of Torres’ .172 BAC. However, the medical examiner refused to state his opinion that Torres’ .172 BAC would have affected his normal use of physical or mental faculties. As a result, the trial court did not allow admission of the evidence regarding Torres’ BAC.

On appeal, the Texas Fourteenth Court of Appeals questioned why the medical examiner would refuse to concede that a BAC of more than twice the legal limit for driving may have affected Torres’ use of his mental or physical faculties. Furthermore, the Court noted that the standard for public intoxication is that an individual is intoxicated to the degree that he may endanger himself or others. According to the Court, the evidence of Torres’ .172 BAC may have led the jury to conclude that Torres was a danger to himself while walking in the middle of the road in the dark. Further, the Court held, the BAC evidence might have provided a possible explanation to the jury for why Torres failed to move from the roadway when the vehicle appeared.

After finding that the evidence of the victim’s BAC should have been admitted, the Court addressed the question of whether the failure to admit had harmed Saenz’s case. According to the Court, Torres’ BAC evidence was essential Saenz’s defense, and excluding the evidence denied Saenz the opportunity to properly present her concurrent causation defense. Because the Court determined that exclusion of evidence of the victim’s BAC was error that may have contributed to the conviction or punishment, the Court reversed the conviction for intoxication manslaughter and remanded the case for a new trial.

This case illustrates the complexity of the current causation defense, which is used in cases other than criminal cases, particularly property insurance cases. A Fort Worth Criminal Defense Attorney will be familiar with the concurrent causation defense and may be able to obtain an acquittal for his or her client by showing that the criminal act would have occurred even if the defendant had done nothing wrong because the victim’s conduct would have caused it.

Jan 08
0
Fort Worth criminal investigation

Private Investigator: An Indispensable Criminal Defense Asset

By | Criminal Defense

Investigating Every Case to Uncover the Real Truth | Fort Worth Criminal Defense Lawyers

Fort Worth criminal investigationEvery criminal allegation exists in a gray area. If one were to focus solely on the police report, a criminal case might seem black and white. But it’s not. There are secrets, personalities, motivations, half-truths, unnamed witnesses, and much more lurking in the shadows of every case. One of the keys to a successful defense is to uncover those facts not articulated in the police report and give the case a context. This is why we use a private investigator as part of our defense team.

A good private investigator is indispensable to a full and complete criminal defense. You would be surprised to hear what people will tell an investigator (while being recorded). Perhaps it’s because people like to feel important, or maybe some folks just aren’t completely aware of what they are saying, but a good private investigator can blow a case wide open simply by hitting the streets to interview witnesses and others connected to the case.

Our investigator is a retired police officer that spent over 30 years on the force in the Dallas Fort Worth Metroplex, including many years as an undercover narcotics officer. He can look at a police report and spot errors in the investigation at the drop of a hat.

If you have been charged with a criminal offense in Tarrant County, Texas and you know that there is more to your case than what is contained in the police report, give us a call and we will coordinate with our investigator to get started uncovering “the rest of the story.” Contact us today for a free consultation.

Oct 16
0

Our Greatest Achievement

By | Criminal Defense

We were asked this week to name our law firm’s greatest achievement.  Hmm… We’ve experienced quite a few successes over the past several years; acquittals, dismissals, no bills.  We’ve built strong relationships with people in the Fort Worth community.  We’ve been fortunate enough to help many clients.  But our greatest achievement…

After some thought, we knew our greatest achievement.

Our greatest achievement is the warm hug or firm handshake of a grateful client.

Just the other day we completed a criminal case in Tarrant County where the client’s parents had come to court to watch.  After the case was over we had a chance to speak with the parents in the hallway of the courthouse.  Our client’s mother was so thankful and through her tears asked if she could give us a hug.  That was the biggest compliment we could ever receive.  It was the overflow of her heart and in that moment, we knew we had made a difference in their lives.

We absolutely love what we do.  We get to help real people.  We are thankful for the opportunities to be a blessing.  We know that it is no accident when a client walks into our office.  Praise God for His plans and His purposes.

Sep 16
0
Texas Penal Code Fort Worth Criminal Attorneys

Criminal Law Legislative Updates 2013

By | Legislative Update

Texas Penal Code Fort Worth Criminal AttorneysBelow is a summary of the most recent Texas legislative updates 2013 as they relates to Criminal Law:

– In an attempt to reduce wrongful convictions in Texas, Senate Bill 1611 requires prosecutors to open their files to defendants and keep records of evidence they disclose. While the United States Supreme Court has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” Senate Bill 1611 requires disclosure of not only all police reports and witness statements, but also any other evidence that is material to any matter regardless of whether such evidence is “material to guilt or punishment.”

– Senate Bill 344 allows courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. During an appeals process, Senate Bill 344 authorizes courts to grant relief on applications for writs of habeas corpus if there is currently available relevant scientific evidence that was not available at the time of conviction. The current relevant scientific evidence is only admissible if the evidence was not ascertainable through reasonable diligence at the time of trial.

– Senate Bill 1238 authorizes the Texas Forensic Science Commission to investigate unaccredited forensic disciplines such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

– House Bill 1847 requires prosecutors to complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

– Under Senate Bill 825, an exoneree is permitted to file a grievance up to four years following release from prison against a prosecutor alleged to have violated the ethics rule regarding the duty to disclose. This bill further prohibits a private reprimand for such a violation.

– In an effort to reduce the possibility of a false confession being admitted at trial by a person who does not speak or understand English, House Bill 2090 requires that a written statement by an accused be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding.

– Upon a second conviction for a “sexually violent offense” against a child under the age of 14, House Bill 1302 requires an automatic life sentence in prison without parole. Furthermore, House Bill 1302 specifically prohibits registered sex offenders from working at amusement parks or seeking employment as cab, bus, or limousine drivers.

– Under Senate Bill 124, the offense of Tampering With A Governmental Record is enhanced from a Class A misdemeanor to a 3rd Degree Felony if the governmental record was a public school record, report, or state-mandated assessment instrument. If the actor’s intent was to defraud or harm another, the offense is enhanced instead to a 2nd Degree Felony.

– In an effort to address human trafficking, House Bill 8 enhances all Prostitution offenses from a Class B misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the actor knew the age of the person solicited at the time of the offense. House Bill 8 also significantly alters the definition of the crime of Possession of Child Pornography. Accordingly, a person commits the crime of Possession of Child Pornography if they knowingly or intentionally “access with the intent to view” child pornography.

– If the underlying official proceeding in a criminal case involves family violence, Senate Bill 1360 enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in the criminal case. Senate Bill 1360 also provides a statutory forfeiture-by-wrongdoing provision, which specifies that a party to any criminal case, who causes a witness to be unavailable for trial through his wrongful acts, forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

– Senate Bill 275 enhances the penalty for the offense of leaving the scene of an accident resulting in the death of a person from a 3rd Degree Felony to a 2nd Degree Felony. – Upon conviction for a 1st Degree Felony Engaging in Organized Crime offense, Senate Bill 549 enhances the minimum penalty from five to fifteen years in prison. In addition, there is an automatic life sentence without parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 or older and the victim was either younger than six; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

– House Bill 2539 places a duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography. It is a Class B misdemeanor offense if the computer technician fails to make such report.

– Senate Bill 12 suspends evidentiary Rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of the trial regarding a separate enumerated sex offense that the defendant has committed. While evidentiary Rules 404 and 405 prohibit the use of evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait, Senate Bill 12 allows such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Senate Bill 12 further requires the trial judge to make a determination that the defendant committed the separate offense beyond a reasonable doubt prior to the introduction of this evidence and outside the presence of the jury.

– Senate Bill 2 was passed in an effort to address the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). This posed a unique issue for 17 year olds in Texas, who are treated as adults and not juveniles. Prior to the passage of Senate Bill 2, the only punishment available for an individual (17 and older) who was convicted of capital murder was either an automatic life sentence in prison without the possibility of parole or the death penalty. In an effort to address the unconstitutionality of this punishment on those younger than 18, Senate Bill 2 provides that an individual younger than 18 who is convicted of capital murder be punished with an automatic life sentence in prison with the possibility of parole.

– House Bill 434 expands the list of those who are authorized to draw blood from an individual during a DWI investigation. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. Now, the list of those authorized to draw blood also includes emergency medical technicians and paramedics. This bill allows for a person’s blood to be drawn without having to transport the individual to a separate facility, such as a hospital, during an intoxication-related investigation.

– House Bill 1862 removes switchblade knives from Texas’ prohibited-weapons statute. There are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

– Senate Bill 821 brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers or “hot drafts.”

If you have a question about how these changes in the law might affect your criminal case, please call us at (817) 993-9249.

Aug 07
1

KNOW YOUR RIGHTS – Being Accused in Texas

By | Criminal Defense

KNOW YOUR RIGHTS – Being Accused in Texas

Be informed. Be aware. Maintain your composure. Your Liberty is at stake. Every day, Texas citizens have interactions with Texas law enforcement. If you have an encounter with law enforcement it is extremely important that you realize that a police officer does not represent you and is not looking out for your legal interests. Only an attorney can do that. You must stay informed and aware of your rights in order to ensure that the Government does not abuse its power. Under the United States and Texas Constitutions and the Texas Code of Criminal Procedure, every citizen has the following rights:

  • THE RIGHT to be informed of the specific offense(s) alleged to have been committed.
  • THE RIGHT to remain silent. Any statement a person makes, oral, written, or non-verbal [nodding of the head] may be used as evidence against that person in a trial by the State of Texas in court or in other judicial proceedings.
  • THE RIGHT to an attorney for any offense other than a class c misdemeanor.
  • THE RIGHT to obtain an attorney of the person’s own choosing, at that person’s expense, for any offense.
  • THE RIGHT to consult with an attorney and to have a lawyer present during any interrogation.
  • THE RIGHT to terminate an interview or interrogation at any time.
  • THE RIGHT to refuse to give consent to search.
  • THE RIGHT against self-incrimination.

NEVER TALK TO OR FOLLOW THE ADVICE OF INVESTIGATORS  WITHOUT FIRST OBTAINING THE ADVICE OF AN ATTORNEY

GENERAL ADVICE

A suspect has a legal, moral and constitutional right to remain silent and place the burden of overcoming the presumption of innocence and proving his or her guilt beyond a reasonable doubt on the officers, investigators, and attorneys for the government. A suspect should never make an oral, written, or non-verbal statement concerning suspected criminal conduct, even to close friends or relatives without first consulting an attorney. Your best friend can turn out to be your biggest problem at trial and your family members can sometimes be compelled to testify against you. Also, BEWARE of the fact that a routine law enforcement tactic is to monitor and record phone or personal conversations between a suspect and the alleged victim or other persons which may play a role in the case. Criminal investigators work to protect the interest of the government and not the interests of the suspect. ONLY a suspect’s personal attorney can and will work to protect the interests of the suspect. During an interview or interrogation, some officers or investigators may use the “good guy-bad guy” technique in which one acts rough and tough and the other one sympathizes and tries to “help” the suspect. The officers or investigators can legally lie to or deceive a suspect in an effort to get a statement, so be careful! These people are highly trained to elicit incriminatory statements from suspects. The safest thing to do is to simply refuse to talk (or even listen to) the investigators. The request for an attorney must be a clear, unequivocal insistence to speak to an attorney; Comments like “do I need an attorney” or “I think I want an attorney” are NOT sufficient to invoke the right to counsel and to terminate the interview. A suspect may be ordered by a judge to give certain samples (handwriting, hair samples, blood, etc). When possible, consult an attorney before doing so or as soon as possible afterwards, especially if ordered to do so over your objection. NEVER CONSENT to the taking of evidence, except for your fingerprints and photograph. Make the investigator get a search warrant. An investigator does not have authority to direct that a suspect produce evidence, except photographs and fingerprints. If a suspect finds that an appointment has been made for him/her with a physician, drug/alcohol counselor, social worker, or psychiatrist, the suspect should contact an attorney first because conversations between suspects and anyone other than his/her attorney(s) are not privileged or confidential under the law. Communications between a suspect and his/her attorney or agent for the attorney (paralegal) are privileged, unless the communication clearly contemplates the future commission of an illegal act.

SEARCHES AND SEIZURES

A suspect should NEVER CONSENT to a search of his/her person or property without first consulting an attorney. A suspect should make it perfectly clear to the authorities that he/she does not consent, but if the authorities persist, a suspect should never physically resist. There are many theories upon which a search may be legally justified and an attorney will examine he facts of the search at a later time to determine if law supported it. If a suspect legitimately consents to the search, however, there are no legal issues. IMPORTANT: A person who does consent to a search may withdraw that consent at any time during a search. IF YOU CONSENT TO A SEARCH, ANY EVIDENCE FOUND COULD BE USED AGAINST YOU! Force the authorities to get a lawful search warrant.

APPREHENSION, ARREST, AND CONFINEMENT

In many cases, investigators do not physically “arrest” a suspect. After questioning or contact by the investigators, the suspect is usually released. When confronted by investigators, a suspect should never run away or physically resist apprehension, arrest, or confinement, whether that person is innocent or guilty. He/she should always go along peacefully with the authorities, while asking that an attorney be made available before any questioning. Any resistance or flight, even if innocent, can be considered as evidence of guilt. Additionally, resisting apprehension can lead to additional charges being added and/or pre-trial confinement. Pre-trial confinement can occur under very limited circumstances, where the officer or investigator determines that the suspect is a “flight risk,” a danger to the community or to himself, or is likely going to continue the misconduct if not put into pre-trial confinement.

POLYGRAPHS

Polygraphs are frequently used by law enforcement personnel. Under no circumstance should a suspect agree to take a polygraph with the law enforcement agency without advice of counsel. Remember it is permissible for investigators to lie to the suspect, so a suspect could actually “pass” a polygraph, but be told by the examiner that he “failed” the polygraph; the fact that a person is actually telling the truth in no manner means that the polygraph will indicate no deception. Polygraphs are notoriously unreliable, so much so that they are inadmissible in court.

GOOD CONDUCT BEFORE TRIAL

Waiting for your trial date to arrive will be a very difficult time for you. It is extremely important however that you avoid any additional problems prior to trial. As difficult as it will be, you must maintain an excellent attitude at all times and strive to be a productive member of society.

Feb 21
0

The Uncertainty of Criminal Trial

By | Trial Advocacy

This past week in Tarrant County, Texas I watched a sexual assault trial that I never dreamed would end in a conviction.  We were not defending the case, but I found it interesting, so I went to watch part of the trial.  While the defendant was not particularly likable, it didn’t seem to me that she was a criminal.  I knew the jurors would not like her, but I didn’t think they would convict her of a felony offense.  But that’s the thing about trial.  I don’t get to sit on the jury.  It only matters what 12 citizens think about the case.  I can think about criminal cases in purely legal terms, but jurors are often swayed by emotion.

This case reminded me that there is always a risk in going to trial.  An inherent uncertainty.  Even when you feel pretty confident about your case.  Thankfully, our criminal defense firm has been fortunate enough to get some favorable verdicts in recent trials, but those could have gone the other way very easily.  It is a sobering reality for criminal defense lawyers that someone’s life and future is in your hands.  Even more sobering, however, is the realization that at trial it’s only partly in your hands.  All we can do is prepare, prepare, prepare, and put forth our very best effort.