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Brandon Barnett

Self Defense Deadly Force in Texas

The Castle Doctrine: Understanding Self Defense in Texas

By | Self-Defense

Know your Rights and Responsibilities Before Using Deadly Force for Self Defense in Texas

Self Defense Deadly Force in TexasYou may have heard about Texas Stand Your Ground Law or The Castle Doctrine.  These ideas refer to “standing your ground” in your “castle” against intruders by using deadly force to protect yourself.  But do you know when you can use force and what kind of force can be used? Understanding the Texas gun laws is incredibly important so that you know exactly what you can and cannot do when protecting yourself or your home, car, or business.

What exactly is the Castle Doctrine? When Can Deadly Force be used for Self Defense Purposes?

In Texas, Section 9 of the Texas Penal Code provides legal justifications for the use of force in a limited set of circumstances when a person has no duty to retreat. For example, a homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder. This would be the same for a business owner in his place of business and a truck driver in his own truck.

Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self defense:

  1. Reasonably believed the deadly force was immediately necessary;
  2. Had a legal right to be on the property;
  3. Did not provoke the person against whom deadly force was used; and
  4. Was not engaged in criminal activity at the time the deadly force was used.

What is Considered Self Defense in Texas?

Self Defense will be a justifiable defense so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. A person may use force against another when they reasonably believe it is immediately necessary to protect from another’s “use or attempted use of unlawful force.” A person may use deadly force in self defense under Section 9.31 of Texas Penal Code if he:

  • Knew the intruder unlawfully with force entered into his home, vehicle, or place of employment; or
  • Was being kidnapped; or
  • The intruder was attempting to sexually assault, rob, kidnap, or murder.

What is the Difference Between Deadly Force and Threat of Force?

Threat of force is when a person displays a weapon as a threat, showing that they will use deadly force to cause death or serious bodily injury if necessary. Texas Penal Code §9.04.  Threat of Force is a precursor to the use of Deadly Force.

For example, a landowner, on his property, sees a trespasser running towards him. If the landowner decides to turn in such a way to display his holstered, loaded gun which causes the trespasser to run off the property, Texas law says this is likely a justifiable threat of force.

When is Defense of Another Person Justifiable?

A person is justified in using force or deadly force to protect a third party if he believes intervention is immediately necessary and would be justified in using force or deadly force to protect himself against the unlawful force in the same circumstance.

However, use of force is not justified if in the use of force to protect a third party, the person gets the circumstances wrong and ends up seriously injuring or killing an innocent third party.

For example, a man sees his friend in a fight and intervene by using deadly force to protect his friend and kills the third party. The man did not realize that the third party was actually using force as self defense against his friend. In this situation, the man would not be able to use defense of others as a justification for killing the third party.

Protection of One’s Own Property

Under Texas Penal Code §9.42, a person may use deadly force against another to protect land or property if:

  1. He is the owner of the land;
  2. He reasonably believes using the force is immediately necessary to prevent arson, burglary, or robbery; and
  3. He reasonably believes that the land or property cannot be protected or recovered by any other means.

Know Your Rights and Responsibilities

In conclusion, while Texas law does have a few justifications for use of force and deadly force, the justifications are only proven in a very limited set of circumstances. Further, even if a person has a justification for using force, he may still be arrested and face trial. Additionally, even though an actor may have been justified in using force, he may still face civil litigation and penalties associated with the use of force against another.

Using force for self defense purposes is a serious response and should only be used in truly dangerous and threatening situations. Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have under the same or similar circumstances.

 

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Texas DPS Drivers License Surcharges

Texas Drivers License Surcharge | REPEALED September 2019

By | Traffic Offenses

UPDATE: In 2019, the Texas Surcharge Program was repealed by law and all surcharges were forgiven as of September 1, 2019. 

Contact DPS Regarding Your Surcharge Account

For assistance with questions about your Surcharge account, you can contact Texas DPS Municipal Services Bureau (MSB) at:

1-800-688-6882

Check Your DPS Account at www.txsurchargeonline.com

If you are unsure whether you have a pending TX DPS surcharge or if you would like to pay your Texas DPS surcharge, you can do this online at www.txsurchargeonline.com. Surcharges in Texas are frustrating and sometimes confusing. If you need clarification on your TX surcharge, you should contact the Texas Department of Public Safety by phone or on their website at www txsurchargeonline com.

Scholarship Winners BHW 2019

2019 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2019 Scholarship Awards

Scholarship Winners BHW 2019This was the 4th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2019 Winner – Military Veteran Law Student Scholarship

The winner of the 2019 Military Veteran Law Student Scholarship is:

CPT ANTHONY TAYLOR, U.S. ARMY

Anthony Taylor is an Army veteran that served as a Pathfinder Platoon Leader in the 82nd Airborne Division’s lite Pathfinder Company and deployed to Afghanistan as a Ranger Platoon Leader in the 75th Ranger Regiment. Captain Taylor will be attending Northwestern University’s Pritzker School of Law in Chicago this Fall. Congratulations Anthony Taylor. Best wishes as you continue toward your law degree.

2019 Winner – Military Dependent Scholarship

The winner of the 2019 Military Dependent Undergraduate Scholarship is:

TYLER CAIN

Tyler Cain is the son of a U.S. Marine infantry veteran. His father was wounded in combat and is currently 100% disabled. Motivated by his father’s struggles, Tyler hopes to earn a degree in Political Science and work as a lobbyist and diplomat. He is enrolled in Coastal Carolina University. Best wishes Tyler, as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Milton v State Improper Closing Argument 2019

Lions, and Babies, and Appeals! Oh my! | When Demonstrative Evidence Goes Too Far

By | Trial Advocacy

When Does a Closing Argument Go Too Far?

Milton v State Improper Closing Argument 2019What do Atticus Finch, Lt. Daniel Kaffee, and Jake Brigance have in common? Each of these fictional movie attorneys are known for zealously representing their clients by delivering intense cross examinations and galvanizing closing arguments. Finch, defending a wrongly-accused man in a time a place where justice was compromised by racial bias, implored the jury to seek justice by tapping into a higher power, “In the name of God do your duty.” Stuck at the crossroads of respecting formal rank and seeking justice in a military court-martial, Lt. Kaffee made the choice to double down on Col. Jessep during cross examination, poking at the Colonel’s pride. Col. Jessep took Lt. Kaffee’s bait, screaming, “You can’t handle the truth!” Jake Brigance took a more creative approach. Asking jurors to close their eyes, Brigance described a depraved series of events that caused his client to murder two people. The jury agreed with the justification, and acquitted Brigance’s client.

Under the Texas Disciplinary Rules of Professional Conduct, an attorney must render competent and diligent representation to their clients, “and with zeal in advocacy upon the client’s behalf.” “1.01 Competent and Diligent Representation,” www.legalethicstexas.com, accessed April 6, 2019. Where is the line drawn for zealous representation in a closing argument? Can demonstrative evidence used in a closing argument go too far? The Court of Criminal Appeals of Texas (“CCA”) says it can.

Milton v State (Tex. Crim. App. 2019) | Improper Closing Argument?

In 2015, Damon Milton robbed a drug store by asking a cashier to give him the money from the cash register. Milton never showed a weapon, and he pretended to shop until customers were not around. He always kept his hands out and visible. According to the police report, Milton did not have a weapon. Additionally, there was some circumstantial evidence that Milton had committed the same robbery to the same drug store the day before. At trial, Milton was found guilty of robbery.

During the sentencing phase of the trial, the State entered into evidence and played before the jury a 35-second video of a baby dressed in zebra-striped clothing at a zoo sitting in front of a protective glass enclosure. Behind the glass was a lion, ferociously trying to get to the baby. The State argued that Milton deserved a long sentence because of his criminal background and because of the crime. Additionally, the State entered into evidence Milton’s criminal history which included forgery, attempted unauthorized use of a motorized vehicle, and robbery by threat.

Defense for Milton objected to the video, on the grounds of relevance and prejudice. Moreover, “there [was] no indication that any of his past convictions involved crimes that were particularly brutal or gruesome…[nor]…any indication that…[there were any] crimes against children.” The State responded that the video illustrated that “motive plus opportunity equals behavior.” In other words, that getting away with a light sentence could embolden Milton to commit future crimes; or that if Milton would be locked away in prison, then he would not be able to commit a future crime, as imprisonment “removes the opportunity.”

Further, the State described the video to the jury, “the motive of that lion is never-changing, never changing, it’s innate…with the glass, the scene is funny, without the glass, a tragedy.” The State added, “we know that the [defendant] is such a bad guy…it’s almost laughable, just like that lion…nothing funny when the [defendant] is outside of prison, that’s a tragedy…[he] is never changing his motive.” The jury assessed Milton’s punishment at 50 years. Milton appealed to the court of appeals, arguing that the trial court’s allowing the video was an abuse of its discretion. On appeal, the State argued that the video was an impassioned plea for law enforcement and community protection, saying it was acceptable to argue that the defendant was a “vicious lion trying to eat a baby and the court needed to stop him.” The court of appeals upheld the trial courts holding, though the court noted that the State’s analysis was “tenuous.” Milton appealed to the CCA.

CCA Holds that Closing Arguments Should Not Inflame a Jury with Things Not Before Them

The CCA had to determine whether the demonstrative video shown at the sentencing phase of the trial was out of step. “The purpose of a closing argument is to facilitate the jury in properly analyzing the evidence presented…so that it may arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted into evidence.” Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). “It should not arouse the passion or prejudice of the jury by matters not properly before them.” Id. “Arguments that go beyond summation of the evidence, reasonable deduction from the evidence, answer to arguments made by opposing counsel, or law enforcement please, too often place before the jury unsworn…testimony of the attorney.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Even though jurors are not stupid, they are human, which is why courts prohibit highly prejudicial evidence.

Accordingly, the CCA concluded that the video could be considered unfairly prejudicial “because it encouraged the jury to make its decision upon matters outside of the record by inviting a comparison between [Milton] and hungry lion.” “The State may strike hard blows, but it must not strike foul ones.” Jordan v. State, 646 S.W.2d 946 (Tex. Crim. App. 1983). There are limits to demonstrative aids in closing arguments. The CCA reversed the court of appeals opinion and remanded to the appeals court for a harm analysis.

Contractor Fraud Construction Fraud Texas

My Contractor Pulled a Houdini! Now what? | Construction Fraud Under Texas Law

By | Fraud

Contractor Fraud Construction Fraud TexasHave you sustained property damage in a powerful storm? If so, you probably had to call a contractor to do necessary repairs. It is sometimes customary in the construction industry for contractors to ask homeowners to pay for some of the work up front, and pay the remaining balance upon completion. Some contractors will ask you to fork over a hefty deposit to someone you do not know, yet you are trusting to get the job done. You are not alone. The good news is that most contractors will operate above the board. Even though social media reviews and ratings sites, such as Angie’s List, are sensible ways of vetting contractors and service providers in 2019, they cannot predict future white collar crimes perpetrated by individuals who are focused on scamming construction deposits out of desperate homeowners.

What Happens if Your Contractor is a Crook? | Construction Fraud in Tarrant County

What legal remedies are available to homeowners in Texas when a contractor pulls a Houdini, vanishing into thin air, cash in hand, without completing the repair work? Contractual breach is the most common civil cause of action. Generally, a contractual breach occurs when (1) there is an existing contractual agreement that is (2) performed (paid for) by one party, yet (3) the other party did not perform as agreed to, which (4) caused damages to the performing (paying) party. Material breach of a roofing contract may occur without intention, when a contractor takes too long to complete a project, or perhaps uses substandard materials, for example. This civil cause of action addresses the damages to the individual, but does not hold the wrongdoer accountable in a criminal court.

So what about those instances in which a scammer intentionally preys upon homeowners in the hopes of pocketing the cash and skipping town? Is this a criminal act?

Construction Fraud Prosecutions in Texas

Tarrant County, Texas has recently begun focusing prosecution efforts on contractor fraud. Homeowners in Tarrant County may call their local police agency to make an initial report. Additionally, homeowners may call the Tarrant County District Attorney’s White Collar Crime and Public Integrity Unit, created by Sharen Wilson, the District Attorney in Tarrant County. Wilson stated in a recent news article, “Construction fraud is a crime, and our citizens need to be protected from it.

When homeowners call the DA’s office, they will talk with a representative to see if the wrongdoing rises to the level of a complaint. If a complaint is filed, the DA’s office reviews the facts of the complaint for potential prosecutable offenses based on a variety of legal theories in criminal law. If the DA’s office finds elements of criminality, an investigation ensues which may result in criminal charges for the wrongdoer.

Construction Fraud Under the Texas Penal Code

The Texas Penal Code does not specifically provide a code section for construction or contractor fraud crimes. What are some of the legal theories and statutes the DA’s office is using to go after these home repair Houdinis? The Tarrant County DA’s office has prosecuted construction and roofing contractors who have absconded with the funds for misappropriation of fiduciary property, theft, insurance fraud, and elder financial abuse, to name a few.

Recently, the Tarrant County DA’s White Collar Crime Team prosecuted a man for theft from elderly victims. For his crimes, this man received three years in jail and an order to make restitution of $77,000.00 to his elderly victims. On multiple occasions, the man used aliases to approach homeowners in the mid-cities and Fort Worth areas, soliciting demolition and repair work. He accepted large sums of money, but never completed the work, or, did substandard work.

In January of 2019, another man pled guilty to Theft of $150,000- $300,000, for scamming 41 residents in the Arlington, North Richland Hills, and Mansfield areas, out of funds they paid him for roofing repairs. This man’s scheme involved sending employees door-to-door to sign customers up for repairs. The employees took checks from the victims, but the roofing work never began. As part of his plea agreement, the man was ordered pay the victims $230,000.00 in restitution.

Each of these types of cases is fact-specific and context-laden. Tarrant County has decided to take a strong stand against construction fraud. “We have made it a priority to put white-collar criminals on notice in Tarrant County—we will not tolerate scammers preying on our residents,” says Matt Smid, chief of the DA’s White Collar Crime Team. The county has also taken steps to provide the public with information regarding scams and fraud that is targeted at seniors. If you feel that you have been a victim of contractor fraud, you do have some options in Tarrant County.

Special Note to Attorneys who represent victims or perpetrators of constructions scams, implicating civil and criminal causes of action: Texas Disciplinary Rule of Professional Conduct 4.04(b) states that a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to gain advantage in a civil matter. According to the Texas Center for Legal Ethics, “giving notice required by law or applicable rules of practice, or procedure as a prerequisite to instituting criminal charges, does not violate the Rule, unless the underlying criminal charges were made without probable cause.

Tampering with Evidence Texas 37.09

Tampering with Evidence under Texas Law | Section 37.09 TX Penal Code

By | Evidence

Tampering with Evidence Texas 37.09During routine traffic stops, police officers sometimes end up arresting individuals for the third-degree felony offense of Tampering with Evidence. How does this happen you ask? If, during the course of a traffic stop, an officer observes the driver toss an item or two out of the window, and those tossed items are later determined to be drugs and/or drug paraphernalia, the officer might just arrest the person for tampering with evidence pursuant to section 37.09 of the Texas Penal Code. The important question though, is whether section 37.09 was intended to prohibit this type of conduct?

What is the Purpose of Section 37.09 – Tampering with Evidence?

Texas Penal Code Section 37.09 provides:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
     (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;  or
     (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Texas courts have found that the purpose of section 37.09 is to uphold the integrity of our criminal justice system. 20 Tex. Jur. 3d Criminal Law: Offenses Against Public Administration § 63 citing Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010); Haywood v. State, 344 S.W.3d 454 (Tex. App.—Dallas 2011 pet. ref’d). This includes prohibiting anyone from “creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding.” Id. However, section 37.09 is not without limitation.

What is the Scope of Section 37.09?

Early case law suggests the scope of 37.09 is very limited. But, as you will read below, the Court of Criminal Appeals rejects this notion by allowing the fact finder the ability infer the intent to tamper.

In Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) the court of appeals held that section 37.09 requires a defendant to know that the item “altered, destroyed, or concealed, was evidence of an investigation, that is pending or in progress, as it existed at the time of the alteration, destruction, or concealment.” Id. In this case, the defendant threw a marijuana cigarette out of the window while he was being pulled over for speeding. Id. Because the officer was only investigating a speeding violation when the defendant threw the marijuana out of the window, the court held that there was no evidence that an investigation in which the marijuana would serve as evidence was “pending or in progress.” Id. The court explained that only after the officer observed the defendant throw out the marijuana did the investigation change to involve drugs. As a result, the court determined there was no evidence of tampering. This analysis, however, has been rejected, albeit not explicitly overruled, in Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008).

In Williams, an officer was conducting a traffic stop and decided to conduct a pat down search of the driver (i.e. defendant) for weapons. During the pat down a crack pipe fell onto the pavement, and the defendant immediately stomped on the pipe, crushing it with his foot. When deciding whether or not the above actions constituted tampering, the Court of Criminal Appeals rejected the lower court’s analysis, which stated that the traffic stop became a drug investigation once the officer and the defendant noticed the pipe on the pavement, and only then was there tampering. In rejecting this analysis, the Court held that requiring a change in the investigation, as the appellate court’s analysis and Pannell does, adds an additional mens rea element not required by section 37.09.

Thus, the Court held that when an officer is investigating a traffic stop and the suspect anticipates that the officer will begin a drug investigation if the officer finds evidence of drugs, and in accordance with that anticipation, the suspect destroys the drugs before the officer becomes aware of them, the suspect has tampered with evidence. As such, there is no requirement for the officer to “see the pipe” or “see the marijuana” before the suspect throws it out of the window in order for that action to constitute tampering. The determination will be made by the finder of fact using circumstantial evidence to draw inferences.

In Conclusion . . .

In conclusion, if the only evidence the State has of tampering is the fact that the defendant threw the item out of the window, without any other indicia of tampering, then the act alone does not rise to level of tampering under section 37.09. However, there are many reasonable circumstances, ever so slight, that could lend the fact finder to make an inference of intent to tamper. With that being said, because the offense of tampering is extremely fact-based, we recommend you reach out to our experienced attorneys to better understand your options.

Stack Sentence Concurrent Sentence

Stacking Sentences to Run Consecutively in Texas

By | Sentencing

The Importance Between Stacked and Concurrent Sentences

Stack Sentence Concurrent SentenceWhen a defendant is convicted of multiple crimes at the same trial, his sentences automatically run concurrently, unless there is an order for the sentences to be stacked (i.e. to run consecutively). When sentences are stacked, defendants are required to finish serving the sentence for one offense before they begin serving the sentence for another offense. So, if a defendant is convicted of multiple crimes, especially those with longer sentence ranges, the difference between stacking the sentences or running the sentences concurrently can be huge. Thus, it is very important to know when sentences must run concurrently, when sentences can be stacked, and who makes those decisions.

Who Decides Whether to Stack a Defendant’s Sentences or Run Them Concurrently?

In Texas, defendants have the right to elect to have the jury or a judge assess punishment. However, even when the jury assesses a defendant’s sentences in a case with multiple charges, it is up to the judge of the court to determine whether the sentences will be stacked or whether the sentences will run concurrently.

The trial court’s authority to stack sentences is derived primarily from article 42.08 of the Texas Code of Criminal Procedure. Under this article, when a defendant with multiple convictions is sentenced, the court must include in the subsequent judgment or judgments whether the sentences will run concurrently or consecutively. This general rule allowing stacking or concurrent sentences applies whether the sentences have been imposed or suspended. As a result, the trial court has broad discretion when pronouncing whether the sentences will be stacked or run concurrently. Nevertheless, there are certain occasions when the judge cannot stack a defendant’s sentence.

When is the Judge Prohibited From Stacking a Defendant’s Sentences?

Generally, when a defendant is found guilty of more than one offense arising from the same criminal episode and prosecuted in a single criminal action, the sentences must run concurrently (i.e. if a person is prosecuted in the same trial for DWI and Unlawful Carrying of a Weapon). However, there are exceptions to this rule that will allow for stacking. For example, if a defendant moves to sever his cases that arose from the same criminal episode, he runs the risk of having his sentences stacked. In addition, case law has permitted multiple convictions, arising out of the same criminal episode, for intoxication manslaughter and certain sex offenses under section 3.03(b) of the Texas Penal Code to be stacked.

What Criteria Does the Trial Court Use to Determine Whether to Stack a Defendant’s Sentence?

Trial Courts tend to consider the same factors used for determining the severity of a defendant’s sentence when deciding whether or not to stack sentences. For example, judges may consider:

  • whether the crimes and their objectives were predominantly independent of each other;
  • whether the crimes involved separate acts of violence or threats of violence;
  • whether the crimes were committed at different times or separate places; and
  • other aggravating or mitigating factors such as a defendant’s past record.

Are There Certain Circumstances When a Judge is Required to Stack Sentences?

Yes, but only in one scenario. As provided in Article 42.08, if a defendant is sentenced for an offense committed while the defendant was an inmate in TDC and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the new sentence be stacked—to begin immediately upon the completion of the defendant’s previous sentence.

Can the Judge Stack a Probation Sentence with a Prison Sentence?

Yes. In Texas, a judge can choose to stack a probation sentence with prison sentence, but the judge must order the confinement sentence to run first and the probation thereafter.

In Conclusion . . .

To determine whether your case involves offenses that may be stacked, you should consult with your attorney. Stacking sentences is rare, but you should still seek proper legal advice when charged with multiple offenses. If you find yourself in this situation and need an attorney, give us a call.

Confrontation Clause Violation When Accuser Does Not Appear at Trial

By | Confrontation Clause

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

Christmas Holiday Arrests Texas

Top 5 Reasons for Arrests During the Christmas Holiday Season

By | Criminal Defense

Christmas Holiday Arrests TexasWhen you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 6 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Airport Contraband (Guns and Drugs)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed. These mostly consist of:

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests and airport drug arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

Driving Around Barricade Crime Texas

Is Driving Around a Water Barricade a Criminal Offense?

By | Criminal Defense

Rules of the Road During Flood Season in Texas

Driving Around Barricade Crime TexasFor four years in a row, Texas has experienced significant flooding due to unusual amounts of rainfall. Many people have lost their lives in cars that were swept away in rushing water and many houses have been ruined by flooding across the state.  First responders are on high alert and have been involved in numerous high water rescues.

One story made the news in 2016 when a man was rescued after his car entered a flooded roadway and was filled with water.  Johnson County had to use a drone to fly overhead and locate the man and then emergency personnel executed a rescue.  But what made this story different was what happened to the man after he was rescued.  Johnson County Sheriff’s slapped handcuffs on the man and arrested him for driving around a barricade.

Driving Around a Water Barricade is a Class B Misdemeanor in Texas

Section 472.022 of the Texas Transportation Code governs “OBEYING WARNING SIGNS AND BARRICADES” and provides (in relevant part):

(a) A person commits an offense if the person:
(1) disobeys the instructions, signals, warnings, or markings of a warning sign; or
(2) drives around a barricade.
(d)(2) if a person commits an offense under Subsection (a) where a warning sign or barricade has been placed because water is over any portion of a road, street, or highway, the offense is a Class B misdemeanor.

In Texas, the punishment range for a Class B Misdemeanor is 0-180 days in jail and a fine not to exceed $2,000.

While arrests after a water rescue are not the norm, this certainly provides another reason not to drive around a high water barricade. You would think that the potential danger to life and property would be enough, but sometimes folks need a little more motivation. Johnson County has given us that.