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Brandon Barnett

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.

BHW offer two annual scholarships - one for a Military Veteran Law Student, the other for a Military Dependent Undergraduate Student. See who won in 2017!

2018 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2018 Scholarship Awards

BHW offer two annual scholarships - one for a Military Veteran Law Student, the other for a Military Dependent Undergraduate Student. See who won in 2017!This was the third 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 many 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.

2018 Winner – Military Veteran Law Student Scholarship

The winner of the 2016 Military Veteran Law Student Scholarship is:

GREGG STARR

Gregg Starr is a Army veteran that served as an Infantry Officer in Operation Enduring Freedom. Mr. Starr will be attending Northwestern Pritzker School of Law in Chicago, Illinois. Congratulations Gregg Starr. Best wishes as you continue toward your law degree.

2018 Winner – Military Dependent Scholarship

The winner of the 2016 Military Dependent Undergraduate Scholarship is:

ELENA POLINSKI

Elena Polinski is the daughter of a retired United State Marine Master Sergeant.  Ms. Polinski will be attending Coastal Carolina University in Conway, South Carolina and is pursuing a degree in Marine Biology. Congratulations Elena! Best wishes as you pursue your dreams.

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

Boating While Intoxicated Boating Offenses Texas

7 Common Boating Offenses in Texas | #3 Can Lead to Serious Prison Time

By | DWI

Boating While Intoxicated Boating Offenses TexasFor a lot people in Texas, the summer is filled with swimming, boating, wakeboarding, and drinking. These activities can be fun and harmless, but sometimes they can take a turn for the worse. Here’s a list of some of the most common criminal offenses that can be committed on a boat in Texas lakes and possible punishments that go along with them. Please keep these in mind to ensure that you have a fun and safe time on the water this summer.

1. Boating While Intoxicated in Texas (BWI)

There is nothing wrong with drinking on a boat, but the boat driver must be careful not to have too many. Under Texas Penal Code 49.06, a person is Boating While Intoxicated if the person is intoxicated while operating a watercraft. To be considered intoxicated, one must not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body or have an alcohol concentration of 0.08 or more. This is the same definition of intoxication that exists under the DWI statutes in Texas.

A “watercraft,” as defined in the Boating While Intoxicated law, is a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

Boating while intoxicated is a Class B misdemeanor, with a minimum term of confinement of 72 hours. It is punishable by:

  • up to 180 days in jail
  • a fine of up to $2,000, or
  • both confinement and fine

2. Underage Operation of a Boat

In Texas, according to the Parks and Wildlife Code, no person may operate a motorboat powered by a motor with a manufacturer’s rating of more than 15 horsepower on the public waters of this state unless the person is at least 13 years of age or is supervised by another person who:

  • is at least 18 years of age;
  • can lawfully operate the motorboat; and
  • is on board the motorboat when under way.

Children that are 13-17 years of age can lawfully operate a recreational vessel (like a jet ski) if they complete a boater education course.
Underage operation of a Boat is a Class C Parks and Wildlife Code misdemeanor and can be punished by a fine of $25 to $500.

3. Failure to Report a Boating Accident in Texas (Felony Offense)

The Texas Parks and Wildlife Code regulates the boating guidelines in Texas. According to Section 31.104, when involved in a boating accident, the operator is required to:

  • Render to other persons affected such assistance, as may be practicable and necessary in order to save them from or minimize any danger.
  • Give his name, address, and identification of his vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

Also, according to Section 31.105 the accident must be reported to the department on or before the expiration of 30 days after the incident. The report should include a full description of the collision, accident, or casualty in accordance with regulations established by the department.

It is the responsibility of each boat operator who is involved in an accident to contact TPWD or your nearest law enforcement agency if the accident:

  • Results in death; (within 48 hours) or
  • Injuries to a person requiring medical treatment beyond first aid; or
  • Causes damage to vessel(s) or property in excess of $2,000.00

Failure to report is a Parks and Wildlife Code Felony and can be punished by confinement in the Texas Department of Criminal Justice for at least 2 but less than 10 years. In addition to imprisonment, a Parks and Wildlife Code felony may be punished by a fine of $2,000 to $10,000.

4. Speeding While Boating

I’ll bet you’ve never noticed any speed limit signs on the lake. Neither have I. However, a person can still violate Texas law if they go too fast in their boat. The Texas Parks and Wildlife Code states that no person may operate any boat at a rate of speed greater than is reasonable and prudent, having due regard for the conditions and hazards, actual and potential, then existing, including weather and density of traffic, or greater than will permit him, in the exercise of reasonable care, to bring the boat to a stop within the assured clear distance ahead. So it appears that the speed limit is whatever a reasonably prudent person would say that it is. If you’re a daredevil, then ask your cautious friend if you’re going too fast.

Speeding is an offense under this section is a Class C misdemeanor and can be punished by a fine not to exceed $500.

5. Failure to Have Life Jackets on Board

Texas Parks and Wildlife Code Section 175.15 requires that there is at least one personal flotation device on board a recreational vessel for each person. Further, each child must be wearing their life jacket while on board.

Failure to have proper life jackets is a Class C misdemeanor and can be punished by a fine not to exceed $500.

6. Fishing Without a License in Texas

A valid fishing license with a freshwater or saltwater endorsement is required to take fish, mussels, clams, crayfish or other aquatic life in the public waters of Texas. However, you do not need a fishing license/package if you:

  • are under 17 years of age.
  • were born before January 1, 1931.
  • are a mentally disabled person who is engaging in recreational fishing as part of a medically approved therapy, and who is fishing under the immediate supervision of personnel approved or employed by a hospital, residence or school for mentally disabled persons.
  • are a mentally disabled person who is recreational fishing under the direct supervision of a licensed angler who is a family member or has permission from the family to take the mentally disabled person fishing

Fishing without a license is an offense under this section is a Class C misdemeanor and can be punished by a fine not to exceed $500.

7. Public Intoxication

Public Intoxication applies on the water, just as it does on land in Texas. Under the Texas Penal Code, a person commits the crime of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Public intoxication is a Class C misdemeanor and can be punished by a fine not to exceed $500.

Texas Criminal Defense Attorneys and Summer Water Enthusiasts

We enjoy the Texas lakes as much as anyone and we hope that you will too. Like we always say, we hope you never need us, either for a criminal offense or for an accident, but we are here if you do. For a free consultation about your legal matter, contact Barnett Howard & Williams PLLC at (817) 993-9249.

Consent to Fighting Texas

Can Adults Consent To A Fistfight in Texas? Not Exactly.

By | Assault

Put Up Your Dukes! Here’s What Texans Need to Know Before They Decide to Engage in a Fistfight.

Consent to Fighting TexasIt’s no secret that folks don’t always get along. Sometimes, especially down in Texas, arguments can lead to fights. When two adults decide to go to fisticuffs, they can reasonably assume that one (or both) of them are going to get hit. But, are the bruises and black eyes the end of it? Can either of these heroes be charged with a criminal offense for their part in the fight? Maybe. It depends.

Consent as a Defense to a Texas Assault Charge

Section § 22.06 of the Texas Penal Code governs consent as a defense to assaultive conduct. This section allows a party accused of assault or aggravated assault or deadly conduct in violation of sections § 22.01, § 22.02 or § 22.05 of the penal code to assert consent of the victim as an affirmative defense to prosecution so long as serious bodily injury is not inflicted and the assaultive conduct is not a requirement of membership in a criminal street gang. While Section § 22.06 is a defense, it does not grant an actor automatic immunity from prosecution. Ultimately, whether both parties to a fistfight demonstrate consent or the reasonable appearance of consent is a fact-intensive inquiry and is a matter for a jury to decide.

-An Illustration-

In Miller v. State, a father and his adult son engaged in fisticuffs over the usual father-son trivialities. The son admitted in an affidavit to egging his father on, inviting him to “come on, hit me,” lunging at his father in a threatening manner and pushing him. The father hit his adult son, bloodying his face and loosening some teeth. After their fight, the bloodied son was discovered by police offers conducting a routine traffic stop. The father was charged with assault in violation of the Texas Penal Code § 22.01. At trial, the father requested a jury instruction on consent but was denied. He was convicted of assault and appealed. The Court of Appeals, Houston 14th District, reversed the trial court, finding that a jury instruction on consent was appropriate given the facts of the case.[1]

What Constitutes Consent to a Fistfight in Texas?

The consent defense to assaultive conduct applies both when the victim gives effective consent to engage in mutual combat as well as when the actor has a “reasonable belief” of the victim’s consent.[2] When evaluating whether a consent defense might apply, courts look to the circumstantial evidence surrounding the fracas. This evidence is evaluated in the light most favorable to the defendant and must merely support the defense’s assertion of the victim’s consent, it does not necessarily have to be believable. Evaluating the credibility of the alleged consent is a question for the jury.[3]

Though juries must be given instruction on consent if the evidence calls for it, the “true meaning” of a combatant’s words are a variable to be considered. In a decision decided on a technicality the court recognized that words like “go ahead,” “come on,” “slap me,” “do it” were not indicative of consent but were “a backhanded warning of potentially dire consequences to the threatener” in those particular circumstances.[4] The court agreed, however, that this is a question for juries to consider with a consent instruction.

In Miller v. State, the victim son, invited his father to “come on, hit me.” The son later explained to police that he was “all jazzed up” and eager for a fight. The victim then kicked and punched his father before his father punched his son. The appellate court took the provocations of the victim to be a part of the calculus for determining mutuality.[5] It is also notable that no parties called the police, that the police encountered the situation through happenstance and pressed charges on their own authority.

What Constitutes “Serious Bodily Harm” Under Texas Law?

Consent is not a defense to assaultive conduct that results in serious bodily harm. Serious bodily harm is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[6] Courts have not produced a definitive demarcation line on what types of assaultive conduct constitute serious bodily harm and what fall short. Serious bodily harm is evaluated on a case-by-case basis[7] accounting for the “disfiguring and impairing quality of the bodily injury.”[8] Injuries are evaluated at the time of the infliction, irrespective of subsequent ameliorating treatment.[9]

Courts have found that the loss of teeth can constitute a serious bodily harm when paired with a sore neck and a week-long hospital stay[10] however, so far, courts have only found the loosening of teeth to rise to the level of serious bodily injury when paired with other serious injuries including fractured facial bones.[11] Blows to the head may or may not constitute serious bodily harm depending on whether they lead to concussion. Similarly, memory loss may or may not constitute serious bodily harm depending on whether it is a product of concussion.[12] Ultimately, if the State alleges serious bodily harm, it is a question of fact for the jury to decide.[13]

In Miller v. State, the state did not allege serious bodily harm and the Court found that the loosening of teeth and the temporary loss of consciousness with no accompanying memory loss did not rise to the level of serious bodily harm.

Jury Instructions On Consent Are Mandatory When Supported By Evidence

In a prosecution for assault, aggravated assault, or deadly conduct in violation of sections § 22.01, § 22.02, or § 22.05 of the Texas Penal Code, the judge must give the jury an instruction on consent and, when charged by the prosecution, serious bodily injury, if the accused has raised any evidence supporting the defense.[14]

“An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence.”[15]

It is the purview of the jury to determine whether or not the accused had a reasonable belief of consent before engaging in combative behavior. Once the issue of consent is submitted to the jury, the court shall charge the jury that reasonable doubt on the issue requires that the defendant be acquitted.[16]

-Conclusion-

Though a fistfight between consenting adults may well fall into the excepted area carved out by Section § 22.06 of the Texas Penal Code, there are many pitfalls that ought to be avoided. When two parties enter into combat it can sometimes be difficult to establish the mutuality of consent. While consent can be implied from the actions of the participating parties including threatening and inviting speech or belligerent physical action, the more explicit the assertion of consent, the better. If there is sufficient doubt about one party’s eagerness to enter into combat, the consent defense may not apply.

Additionally, when engaging in consensual mutual combat, care must be taken by both parties to not traverse the divide between simple assault and serious bodily harm. Because of the nebulous nature of what constitutes serious bodily harm and the unpredictability in how courts interpret the statute, this can be an especially tricky area to navigate. The difference between a loose tooth and a lost tooth may mark the difference between whether § 22.06 applies.

Finally, both the consent of the parties as well as the gravity of the injuries inflicted are questions for a jury to decide. Though § 22.06 should be introduced as an instruction for a jury to consider when supported by evidence, a person accused of assault still may likely have to undertake the time and expense of a criminal prosecution.

 

[1]          Miller v. State, 312 S.W.3d 209 (Tex. App. – Houston [14th District] 2010).

[2]          § 22.06.

[3]          312 S.W.3d at 212.

[4]          Allen v. State, 253 S.W.3d 260, 268 (Tex. Crim. App. 2008).

[5]          312 S.W.3d at 211.

[6]          Tex. Penal Code Ann. § 1.07 (West).

[7]          312 S.W.3d at 213.

[8]          Blea v. State, 483 S.W.3d 29, 34–35 (Tex. Crim. App. 2016).

[9]          Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1986, no pet.).

[10]        Hatfield v. State, 377 S.W.2d 647, 648 (Tex. Crim. App. 1964).

[11]        Pitts v. State, 742 S.W.2d 420, 421 (Tex. App. – Dallas 1987).

[12]        Powell v. State, 939 S.W.2d 713, 718 (Tex.App.-El Paso 1997, no pet.).

[13]        312 S.W.3d at 213.

[14]        Tex. Penal Code Ann. § 2.03 (West).

[15]        Id. at 212.

[16]        § 2.03.

TSA Airport Gun Charges Texas

What to do if Arrested for Bringing a Gun to the Airport (Accidentally)

By | Weapons Charges

Unlawful Carrying of a Weapon at an Airport in Texas

TSA Airport Gun Charges TexasWe love our guns in Texas. After all, those licensed to carry a handgun can now choose to conceal the handgun or wear it on their hip like in the old west. But carrying a handgun comes with its risks. Many places are designated as “off limits” for handguns. Chief among them is the airport. And everyday, well-meaning folks forget about their trusty handgun when they pack their bags and head to DFW International Airport, only to be reminded by a less-than-friendly TSA agent as they attempt to pass through security. In fact, Texas is the #1 state for airport gun seizures in the country (and DFW International Airport leads the way in Texas).

What Can Happen if I Accidentally Bring a Gun Through Security at DFW Airport?

Generally, if you carry a firearm through the security checkpoint at an airport, you can be detained and arrested. Carrying a firearm, either on your person or in your carry-on luggage, is a violation of Texas Penal Code Sections 46.02 and 46.03. The detention and arrest could take several hours and might cause you to miss your flight as you move through the process. The DFW Airport Police could also confiscate your handgun. If you are arrested for bringing a handgun to the airport, your case will be filed with the Tarrant County District Attorney.

How Serious is an Arrest for Bringing a Firearm to the Airport in Texas?

Depending on how the authorities choose to proceed, you could be charged with 3rd Degree Felony or a Class A Misdemeanor. A 3rd Degree Felony carries a range of punishment from 2-10 years in prison and a fine up to $10,000. A Class A Misdemeanor carries a punishment range of 0-365 days in the County Jail and a fine up to $4,000. We handle several airport gun cases every year and in our experience, the Tarrant County DA typically files the case as a Class A misdemeanor, while cases that originate in Dallas Love Field Airport usually see the higher felony charge.

What Should I Do After I am Arrested for an Airport Gun Charge?

After you post bond and are released from custody, you need to hire a lawyer to help defend you on the charges. You should also consider signing up for a local gun safety course so that you can demonstrate that you understand the severity of your mistake and are taking steps to ensure that it does not happen again. Other than that, follow the advice of your attorney. Do not attempt to get your gun back. Your lawyer can help you do that with a court order, if appropriate, once the case is closed.

I Have an LTC (CHL). Are There Any Exceptions for Me?

Yes. In 2015, the Texas legislature added some language to Section 46.03 to provide for LTC holders who accidentally forgot about their weapon. Section 46.03 now provides:

(e-1) It is a defense to prosecution under Subsection (a)(5) that the actor:
(1) possessed, at the screening checkpoint for the secured area, a concealed handgun that the actor was licensed to carry under Subchapter H, Chapter 411, Government Code;  and
(2) exited the screening checkpoint for the secured area immediately upon completion of the required screening processes and notification that the actor possessed the handgun.
(e-2) A peace officer investigating conduct that may constitute an offense under Subsection (a)(5) and that consists only of an actor’s possession of a concealed handgun that the actor is licensed to carry under Subchapter H, Chapter 411, Government Code, may not arrest the actor for the offense unless:
(1) the officer advises the actor of the defense available under Subsection (e-1) and gives the actor an opportunity to exit the screening checkpoint for the secured area;  and
(2) the actor does not immediately exit the checkpoint upon completion of the required screening processes.

So, basically, they are going to give you a chance to leave the secured area as soon as your mistake is realized. They cannot arrest a valid LTC holder unless the person refuses to leave the secured area immediately.

How Can I Lawfully Carry a Firearm on a Flight?

To carry a firearm on a flight, you must place the firearm in your checked baggage and declare it at the time you check your bags. Also, you should check the TSA guidelines before packing to ensure that you follow all of the rules and regulations.

TSA Sent Me a Demand for Money After I was Arrested. What Should I Do?

The law allows for TSA to send a civil demand letter for money damages. TSA officials consider the “severity” of your violation and then send a demand for money within the range that they consider appropriate. They will typically allow for your to pay less than the demanded amount if you pay quickly.

*See this sample TSA Civil Demand Letter.

You may pay the full demand, file a written response, or contact TSA to see if you can work out an arrangement. We have been able to help our clients pay less than what is demanded, but every case is different.

Will I Receive a Conviction on My Record For This?

It depends. Many of our clients that were charged with Unlawfully Carrying a Weapon in the airport have had their cases dismissed. But again, every case is different. The key is to contact an attorney right away so that your rights may be preserved throughout the criminal justice process.  Our team regularly handles airport gun cases arising out of DFW International Airport or Love Field Airport. We have offices in Keller and Fort Worth and offer free consultations.

Baylor Football Ukwuachu Sexual Assault

Baylor Football Player Sam Ukwuachu’s Sexual Assault Conviction Reinstated

By | Sex Crimes

Baylor Football Ukwuachu Sexual AssaultBaylor Sexual Assault Case: Ukwuachu v. State (Tex. Crim. App. 2018) 

Anyone who lives in the state of Texas has heard about the sexual assault scandal at Baylor. One of the cases that triggered the investigation of how Baylor handles sexual assault accusations recently took an interesting turn. Former Baylor football player Sam Ukwuachu was found guilty of sexual assault in 2015. He has been fighting that conviction ever since. The prosecution achieved this conviction with the help of text messages sent from the victim to her friend. Ukwuachu’s defense attorney argued that earlier text messages sent to the same friend would help to show the complete nature of the relationship and could be compelling evidence that the woman consented to sex. However, the trial court decided that those text messages were inadmissible under Texas’ Rape Shield Laws and Ukwuachu was ultimately convicted. The process did not stop there.

Ukwuachu Appealed the Sexual Assault Conviction

Ukwuachu appealed his conviction arguing that the earlier text messages should have been admissible and the trial erred by refusing to admit them. In 2017, the 10th Court of Appeals sided with Ukwuachu, reversing the conviction and ruling that the trial court abused its discretion by refusing to admit the messages. The court reasoned that under Texas Rules of Evidence 412 and 107, the messages should have been allowed even though Ukwuachu’s attorney did not present the evidence under Rule 412.

Texas Court of Criminal Appeals Overturns the Lower Court, Reinstates Conviction

This week, Texas’s highest criminal court issued its opinion on the case. Ukwuachu v. State (Tex. Crim. App. 2018). The CCA held that the 10th Court of Appeals erred when it reversed the conviction. In a plurality opinion, the CCA held that the trial court did not abuse its discretion in not allowing the text messages.

Texas Rule of Evidence 412 and 107

Rule 412 is also known as the “Rape Shield” law. It is a rule of exclusion that prevents the admission of evidence of a sexual assault victim’s “past sexual behavior.” TEX. R. EVID. 412(a)(1). It also makes any evidence in the form of depictions of specific instances of the victim’s sexual conduct inadmissible. TEX. R. EVID. 412(a)(2). However, it has many exceptions.

The exceptions the TRE 412 include when the evidence:

  • is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;
  • concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;
  • relates to the victim’s notice or bias;
  • is admissible under Rule 609; or
  • is constitutionally required to be admitted

Rule 107 is known as the Rule of Optional Completeness. Rule 107 states,

 “[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.”

Under this rule, there are two avenues to the admission of evidence. The first is if partial evidence is introduced, any remaining part of that same evidence may be introduced so long as it is on the same subject. Second, other evidence, even evidence that is not a part of what has already been introduced, may be introduced if it is necessary to explain or help the trier of fact fully understand the part that was introduced. Basically, the courts do not want the parties to present a false picture to the jury by selectively presenting pieces of the whole.

Rule 107 was the focal point at the trial court regarding the admission of the “other text messages.” The defense argued that the order messages were necessary to help the jury to fully understand the messages that were already in evidence. The state (and the trial court) disagreed.

Why Was the Conviction Reinstated?

The CCA explained that at the trial court, neither party discussed Rule 412 and how it would apply to the text messages. Instead, both the state and the defense argued based on Rule 107. Accordingly, it was inappropriate for the 10th court to decide the appeal using Rule 412. When analyzing Rule 107, the Judge noted that the text messages could have been interpreted in multiple ways. They could have been part of the same conversation, they could have been necessary to explain the messages already introduced to the jury, or they could have fallen into neither category, making them inadmissible. The trial court determined that the messages fell into neither category and were inadmissible. The CCA explained that this was not error because it fell under the trial court’s discretion. Judge Walker wrote:

Arguably, both parts of the text stream are within the same conversation, because a text message conversation can span a long period of time and the messages at issue in this case were all sent on the same night over what was, at most, a one hour and forty-five minute time period. On the other hand, the earlier text messages that defense counsel sought to have admitted appear to be during a time when the victim was traveling with Appellant to Appellant’s apartment, and the later text messages that the State introduced appear to be during the time that the victim was actually at Appellant’s apartment, including the time after the assault occurred. This latter interpretation is the one that the trial court made during the hearing.

A court only abuses its discretion if its decision lies outside the zone of reasonable disagreement. Since the trial court’s decision in this case fell within a reasonable zone of disagreement, its decision to deny the introduction of the text messages should stand. This means that Sam Ukwuachu’s original conviction is reinstated.

The case was remanded back to the lower court.

Supreme Court Holds Police May Not Search Vehicle in Driveway Without a Warrant

By | Search & Seizure

Collins v. Virginia – US Supreme Court Considers Whether Police May Search a Vehicle in a Driveway Without a Warrant

 

Collins v. Virginia (US Supreme Court 2018)

In Collins v. Virginia, police officers were looking for a motorcycle that they suspected was stolen. They tracked the motorcycle to a home where it appeared to be parked in the driveway and covered by a tarp. Officers walked up the driveway, removed the tarp, discovered the motorcycle and conducted a search of the license plates. The license plate search indicated that the motorcycle was indeed stolen. The officers then replaced the tarp over the motorcycle and waited in their car for the driver of the motorcycle. When Collins appeared, they arrested him.

Collins’s Motion to Suppress the Warrantless Search

In the trial court, Collins made a motion to suppress evidence, claiming that the officers violated his 4th Amendment right when they entered the curtilage of his home and conducted a warrantless search of the driveway. The trial court denied the motion and Collins was convicted of Receipt of Stolen Property. The Virginia appellate court and State Supreme Court affirmed Collins’ conviction, reasoning that the “automobile exception” to the warrant requirement applied to the search in this case.

What is the Automobile Exception to the Warrant Requirement?

Generally, the “automobile exception” to the 4th Amendment allows officers to search a vehicle without a warrant if they have probable cause. The rationale behind this exception is that automobiles should be treated differently than houses because of the “ready mobility” of the automobile. Virginia argued that the automobile exception should apply in this case, because the motorcycle was capable to being driven away from the home.

Supreme Court Overturns the Virginia Courts, Defining the “Curtilage” of the Home to Include the Driveway

The US Supreme Court, Justice Sotomayor writing for a nearly unanimous court, held that the officers violated Collins’ 4th Amendment right to be free from unreasonable searches and seizures. The Court emphasized that the area of the driveway where the motorcycle was parked was a protected area of the home.

[T]he part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area “outside the front window,” that enclosure constitutes “an area adjacent to the home and ‘to which the activity of home life extends.’ “

Justice Sotomayor further explained that:

Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the exception ” from the justifications underlying’ ” it.

In holding that the search violated the 4th Amendment, the Court reversed the decision of the Virginia Supreme Court and remanded to case back to the state.

Takeaway

The curtilage of the home extends to the driveway and items that might be found therein. Of course, if the officers had been able to view the license plates from the street, without removing the tarp, things would likely be different. However, as it stands, the Supreme Court is unwilling to adopt any rule that would allow police to enter the curtilage of the home to conduct a warrantless search.

Innocent DNA Transfer in Laundry

Innocent Transfer of DNA Through a Load of Laundry

By | DNA

What is Transfer DNA and Why is it Important in Criminal Cases?

Innocent DNA Transfer in LaundryWhen a person thinks of DNA evidence, they typically think of blood, semen, or some sort of bodily fluid left at a crime scene that indicates a suspect in a crime. However, this is no longer the case. With the advances in technology, DNA can be detected from just sitting near another person. In a study done by Australian forensic scientist Roland van Oorschot, he found that in 50% of volunteers who sat at a table and shared a jug of juice they ended up with another’s DNA on their hands. The volunteers never touched one another and some of the DNA found was from individuals who were not even at the table. They found that DNA was much easier to transfer than anyone had previously thought.  This means that at any given crime scene, there could be hundreds of DNA profiles. The DNA found by investigators could be from an innocent person or the suspect. This is concerning because, while there is a way to discover whose DNA it is, there is not a way to discern how it got there. Who’s to say they won’t find yours?

The DNA Phantom Case From Germany

That is exactly what happened in the case of the Phantom of Heilbronn. In Germany, DNA from one woman was found at crimes scenes ranging from murders to thefts. This woman’s DNA was connected to 40 crimes extending as far back as 1993 and covering the countries of Germany, Austria, and France. However, the DNA that was found did not belong to the perpetrator, it belonged to a woman who made the cotton swabs used to collect DNA samples from the crime scene. Even though the cotton swabs went through the proper sterilization process, they still contained traceable amounts of DNA. The Phantom of Heilbronn is an example of how easily DNA can be innocently transferred to a crime scene.

How DNA Can Be Transferred Through Laundry in Child Sexual Assault Cases

When it comes to child sexual abuse cases, researchers have found that DNA can be transferred innocently by the laundry even after clothes are supposed to be “clean.” A Canadian study discovered that when undergarments are washed with sheets containing bodily fluids, the undergarment too will have DNA on them. The DNA from the sheets transfers to the undergarments in the washer and the washer itself. This is problematic because a person’s DNA can end up on every household member’s clothing in one wash. This DNA can later be collected during an investigation, but investigators might make the wrong assumption as to how it got there.

To help distinguish between innocent DNA transfer from laundering and DNA that was left during a crime, the researchers studied the location of the DNA on the items of clothing. In the process of this experiment, the findings strongly suggest that bodily fluids that were transferred during laundering were absorbed deeper into the fabric. Swab samples that yield significant quantities of bodily fluids are indicative of the fluid being deposited directly on the clothing as opposed to transfer during laundering. DNA that is transferred during the laundering process is both found in a different location and lesser in quantity than DNA deposited through abuse.

What Does This Mean for the Future of DNA Analysis?

The findings from this research are important for the future of DNA evidence, especially in the case of child sexual abuse cases. This research shows that DNA does not immediately indicate sexual abuse. This research emphasizes that the mere presence of DNA on a child’s undergarments does not confirm abuse. Investigators should gather all available evidence before they come to a conclusion.