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Brandon Barnett

Nov 11
3
Impersonating a Public Servant in Texas

Man Pretends to be a Dallas District Attorney and Receives 2 Years in Prison

By | Criminal Defense

Impersonating a Public Servant in TexasWhen I think of someone impersonating an attorney, my mind goes to Joe Pesci and My Cousin Vinny.  In the movie Vincent Gambino only impersonated a criminal defense lawyer (not a public servant) so nobody seemed to care (except the judge), but in Texas, Impersonating Public Servant (including a district attorney) is a serious matter.  Robert Cornwell found this out after he pretended to be a Dallas County Assistant District Attorney in hopes of helping his friend with a DWI case.

In May of 2012, Robert Cornwell called Montgomery County Assistant District Attorney Kourtney Teaff, identifying himself as an assistant district attorney from Dallas County, attempting to “resolve [his friend’s] [DWI] case.” Cornwell claimed access to criminal histories, case files, and fingerprint cards. He mentioned speaking with governmental offices, and prosecuting his nephew for drug possession. Cornwell insisted on using his personal cell phone number because he and Teaff “were on the same team.” Becoming suspicious of the “highly unusual” requests coming from another district attorney, Teaff recorded the conversations. According to the trial court, Cornwell always used his real name, he had never been an attorney in Texas, he never attempted to claim official authority over Teaff, and he intended that “Teaff should consider the requests a personal favor.” Cornwell was sentenced to two years imprisonment for impersonating a public servant.

See the opinion in Cornwell v. State

What does “Impersonating a Public Servant” mean in Texas?

Impersonating a Public Servant is a Third Degree Felony with a punishment range of 2-10 years in prison and up to a $10,000 fine.  A person violates Section 37.11(a)(1) of the Texas Penal Code when the person impersonates a public servant in combination with the requisite intent…[which] can be satisfied with either the submission theory (“with intent to induce another to submit to his pretended official authority”) or the reliance theory (“with the intent to induce another…to rely on his pretended official acts.”).

Cornwell appealed to the Court of Appeals, arguing that the evidence was insufficient to show either theory of intent—submission or reliance—because he did not persuade Teaff to submit to any asserted authority he might have over her. The Court of Appeals rejected Cornwell’s argument, “concluding that the evidence was…sufficient to support a jury finding that he had impersonated a public official with intent to induce another to rely on his pretended official acts—the reliance theory.” Cornwell then petitioned the Court of Criminal Appeals (“CCA”) for discretionary review.

Here, the CCA determines whether the Court of Appeals was incorrect in misconstruing the meaning of the Section 37.11(a)(1) of the Texas Penal Code, as only “a few Texas appellate courts have directly addressed the reliance theory of intent, and specifically, the meaning of pretended official acts.” See Ex Parte Niswanger, 335 S.W.3d at 617 & n.11; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d.); Tovar v. State, 777 S.W.2d 481,489 (Tex. App.—Corpus Christi 1989, pet. ref’d.).

The CCA Clarifies what “Impersonating” means (and doesn’t mean).

The CCA explained that Section 37.11(a)(1) can be broken down into two parts: the culpable act (actus reus, the bad act) and a culpable mental state (mens rea, the guilty mind). To violate the statute, the State must prove:

  1. that the impersonation happened and
  2. that the impersonator had the specific intent to induce another to submit or to rely upon.

“An accused may not be convicted on a simple showing that he falsely held himself out to be a public servant.”

Because it was undisputed that Cornwell did impersonate a public servant—an assistant district attorney from Dallas County—satisfying the first part of the statute, the CCA focused on Cornwell’s mental state, specifically the reliance theory—the evidence that shows Cornwell’s intent to induce another to rely upon his pretended official acts. The CCA explained that Cornwell attempted to persuade Teaff he was “an experienced assistant district attorney by relating various claims of conduct he had undertaken as an assistant district attorney” namely, “putting his nephew in jail, reviewing case files, and investigating matters in the capacity of assistant district attorney.” The CCA is adamant that, “the only reason [Cornwell] could have had for relaying these pretended official acts to Teaff was to enhance the credibility of his claim to be an assistant district attorney.” “By calling and speaking to an assistant district attorney as a member of the same team, [Cornwell]…hoped to gain [Teaff’s] trust and goodwill.” Further, Cornwell did not ask for favor[s] in his capacity as a private citizen or concerned friend, rather, he asked under the guise of being an assistant district attorney. The CCA states, such “purported actions exceed mere false identification as a public servant.” The CCA agreed with the Court of Appeals, affirming Cornwell’s conviction and sentence.

There are no shortcuts to due process. The Texas Penal Code prescribes strict punishment for those impersonating officers of the court. There is no doubt that criminal charges and allegations can make the accused feel panicked and overwhelmed, however, the old adage “desperate times call for desperate measures,” will not hold water in court where impersonation is concerned. If you or a loved one are facing criminal charges, contact an actual Texas attorney who will explain the proper steps in dealing with the legal system. Contact our office today for a free consultation at (817) 993-9249.

Nov 06
2
Community Caretaking Fort Worth

“Hunched Over” Passenger Not Enough Distress to Invoke the Community Caretaking Exception

By | Criminal Defense, DWI

Community Caretaking Fort WorthWhile conducting a preventative patrol on the Fourth of July in 2013, a Fort Worth police officer stopped at a red light beside Cameron Byram’s vehicle. Both vehicles had the windows rolled down. The officer testified at trial that he noticed a female passenger in Byram’s car “hunched over…[and that he]…didn’t see any movement at all [from] the female.” The officer smelled alcohol coming from Byram’s car, and felt Byram was “not attending to the female passenger.” The officer shouted over to Byram, asking if she was alright, but Byram faced forward and drove away when the light turned green. Believing the female passenger needed medical attention, coupled with Byram’s actions “as an attempt to avoid contact with the police,” the officer stopped Byram’s car to conduct traffic stop. The officer checked on the passenger and called for medical attention, which she later refused. Next, the officer investigated and arrested Byram for driving while intoxicated (DWI). The officer testified that Byram had not committed a traffic offense, nor were there any technical violations on Byram’s car—he only stopped the car to perform a safety check.

Byram v. State (2nd Court of Appeals – Fort Worth, 2015)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion.

After his motion to suppress the evidence for the DWI charge was denied, Byram entered a guilty plea. The trial court assessed punishment at ninety days in jail and a $750 fine, but suspended the sentence, placing him on community supervision for eighteen months. Byram appealed.

The issue before the Fort Worth Court of Appeals is whether the community caretaking exception to the Fourth Amendment applies to the facts of the case, or, whether the police officer had reasonable suspicion to stop Byram.

The Fourth Amendment provides a safeguard against unreasonable searches and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless arrest is considered unreasonable unless it fits into an exception, such as the community caretaking exception. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 2135 (1993); Torres, 182 S.W.3d at 901. A search or seizure “is not unreasonable” when community caretaking is the goal, however, the exception is “narrowly applied” in the “most unusual of circumstances.” Wright, 7 S.W.3d at 152.

“Courts consider four non-exclusive factors in determining whether the officer’s belief that the defendant needed help was reasonable: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

First, the Court of Appeals concludes that the passenger did not exhibit distress. “The passenger did not appear to be in any great distress, she was located in a busy area of town where there were nearby hospitals, she was not alone [in the car], she was in public, and she did not appear to be a danger to herself or others.” Further, the Court of Appeals states, “We…cannot conclude that the…community caretaking exception, when applied to a hunched over passenger…indicates that the passenger presented a danger to herself or others.”

Second, the Court of Appeals determines that the officer lacked reasonable suspicion to be able to perform a safety check. “[While] we do not question the good faith of [the officer’s] subjective suspicion that Byram might have been involved in an alcohol-based offense…so long as consumption of alcohol is not illegal…permitting…investigation of persons for alcohol-based offenses solely on whether the odor of alcohol is present invites unwarranted police intrusions.” Byram’s traffic stop violated his Fourth Amendment rights.

Justice Sue Walker dissents, stating the passenger was exhibiting signs of distress because she “was not moving and appeared unconscious.” The passenger was also in a vehicle driven by a man “who appeared unconcerned about her well-being.” The passenger’s access to assistance was doubtful because Byram did not respond to the police officer’s question about her condition. Lastly, the passenger was a danger to herself because she appeared unresponsive and unable to ask for help. “Thus, all four factors…support the reasonableness of the officer’s belief that she needed assistance.”

Law enforcement officers must abide by local, state and federal procedural and substantive laws when conducting traffic stops and arrests. If you or a loved one is facing DWI charges or traffic violations, please contact our office today for a free consultation at (817) 993-9249.

Nov 04
0
Knowing Possession of Drugs in Texas

Trace Amounts of Drugs Inside Pipe Not Enough For Knowing Possession of Drugs

By | Drug Crimes

What Does it Mean to Be in Knowing Possession of Drugs in Texas?

Knowing Possession of Drugs in TexasPolice found George Williams sitting behind an air conditioner unit of a business building. Even though it was a cool morning, Williams had his shirt off and was sweating profusely. After doing a pat-down of Williams, police found a crack pipe in his pocket that was later determined to have cocaine residue in it by police and a chemist.

The Trial Court convicted Williams of knowingly possessing a controlled substance. The elements are:

  1. that appellant exercised actual care, control and management over the contraband; and
  2. that appellant had knowledge that the substance in his possession was contraband.

The 14th Court of Appeals (Houston) wanted to look further to see whether the evidence would support a reasonable inference that the defendant knowingly possessed the contraband. When the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance.

Read the Case:  Williams v. State (14th District Court of Appeals – Houston, 2015)

In other cases, the defendant was convicted because the State proved that there was saliva on the crack pipe, suggesting that it had recently been smoked and that the defendant was intoxicated at the time the police found him. Another example is a defendant being found in a well-known drug house holding a syringe with cocaine in it in a manner that he was about to insert, or had just inserted it, into his body.

In this case, the Court of Appeals found that the only evidence was that Williams had his shirt off and was sweating. The Court of Appeals held that this was not enough to prove Williams had recently used the pipe or knew of its purpose as a crack pipe. The Court of Appeals reversed this case in the favor of Williams.

This signals that it takes more than just merely being found with a pipe containing trace amounts of a drug to be convicted of knowingly possessing the drug. There must be more evidence such as intoxication, recent usage, or being found in a known drug house.

Fort Worth Drug Crimes Attorneys | Free Case Consultation

If you have been charged with possession of a controlled substance or any other drug crimes, contact our attorney today for a Free consultation of your case. We will take the time to speak with you about the incident and answer your questions about the criminal justice process in Tarrant County. Contact our office at (817) 993-9249.

Nov 03
0
Passing in Left Lane in Texas

Warrantless Traffic Stop Upheld for Driving in “Passing Only” Lane

By | Drug Crimes, Reasonable Suspicion

Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Passing in Left Lane in TexasJaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.

Oct 30
2
Vincent Bugliosi

Vincent Bugliosi’s Advice on Cross-Examination and Asking “Why”

By | Trial Advocacy

Renowned Trial Lawyer, Vincent Bugliosi, Explains One of His Theories About Cross-Examination

Vincent BugliosiIn 2011, I had the privilege of escorting the late Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, was best known as the prosecutor that put Charles Manson away.  He was also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, ‘Till Death Us Do Part, and Outrage.  He would tell you, however, that his proudest moment was his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi did not exactly agree with that maxim.  Here’s what he had to say on the subject:

Even if I do not ask “why,” the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the “why” question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.

Although both lawyers can avoid asking the “why” question and, as in some other situations, “save for final argument” the implications of the witness’ testimony, by that late point in the trial the witness’ reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.

The “why” question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn’t first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can’t go somewhere when he has nowhere to go.

If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the “why” question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.

Mr. Bugliosi made sure to caveat that we should never ask the “why” question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.  His true crime books are excellent and are highly recommended for all criminal trial lawyers out there.  Vincent Bugliosi passed away on June 6, 2015.

Oct 29
0
Sexting Message Texas

“Attempted Sexting” Lands 24 Year-Old on Sex Offender Registry

By | Sex Crimes

Attempted Transfer of Explicit Video of Self to a Minor (Sexting) Amounts to a ‘Sexual Act’ Resulting in Registration on the Sex Offender Registry

Sexting Message TexasUnited States v. Schofield – (5th Circuit Court of Appeals, 2015)

Should a person be ordered to register as a sex offender for sending explicit video to a minor (sexting), but never physically touching the victim? The Fifth Circuit Court of Appeals says yes.

In November 2013, twenty-four year old Nick Schofield began sending text messages to a fifteen-year-old girl. They sent text messages for four months, when an undercover federal agent assumed the girl’s side of the conversation. Believing he was still communicating with the girl, Schofield sent the undercover agent sexually explicit photos and videos of himself. A grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, violations of 18 U.S.C. § 1470. In his plea agreement, Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the other counts were dismissed at sentencing.

The district court sentenced Schofield to two years imprisonment and ordered him to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The purpose of SORNA is to establish a national sex offender registry, “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. Under SORNA, a convicted sex offender must register his current address and employer’s address.

At trial, Schofield objected to the registration requirement of his sentencing. Schofield appealed to the Fifth Circuit Court of Appeals, contending (1) that the crime of attempted transfer of obscene material to a minor was not a sex act under SORNA and (2) that the statutory definition of a sex offense as a “criminal offense against a minor” was an unconstitutionally vague, all-encompassing residual clause.

First, the Court stated the purpose of SORNA is to “cast a wide net to ensnare as many child offenders as possible.” United States v Dodge, 597 F.3d 1347. The wide net was meant to apply to as many offenses against children that make sense according to the plain language and plain meaning of the statute. The Court also quoted an Eleventh Circuit case dealing with similar facts and charges. The Eleventh Circuit held that the 18 U.S.C. § 1470 intended “[not] to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria.” Id. In short, the Fifth Circuit Court of Appeals held that the crime of attempted transfer of obscene material to a minor, was in fact, a sex act under SORNA’s plain language, structure, legislative history, and purpose.

Second, the Court found that Schofield’s conduct in sending the explicit video to a fifteen-year-old girl falls within the SORNA residual clause, noting, “the key is conduct that contains a sexual component toward a minor.” Because Schofield’s conduct “engaged with” a young girl in a sexual manner, the Court held that his conduct includes a sexual component toward a minor, falling under SORNA’s residual clause. The Court reiterated, “Judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor.” Id.

The Fifth Circuit Court of Appeals held that the language of SORNA’s residual clause was intentionally vague, with the purpose of including as many criminal offenses as possible. Even though the Defendant did not have physical contact with the girl, he was deemed by the Court to have behaved in a sexual manner, which amounted to a sexual act requiring registry on the sex offender registry. If you or a loved one is facing a sexual or computer crimes charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249.

Oct 23
0
Bail Bond Scam

Bail Bond Scam Alert

By | Bail Bonds

Dallas Fort Worth Bail Bond Scam

Bail Bond ScamPublic Service Announcement:  Attorneys beware that your clients could be the target of a Bail Bond scam that is going around.  There is a person with a Florida phone number (352-210-7464) that is calling criminal defendants in the DFW area claiming to be a representative from their bail bond office.  The caller then claims that the person (who is typically in good standing) owes some amount of money to the bail bondsman.  The caller then threatens to go off the bond if the person does not pay immediately.

This happened to one of our clients yesterday and we called the number to investigate and quickly uncovered the scam.  Please let your clients know that this is going around so that they are not fooled if they get a similar call.

Oct 22
0
Fort Worth criminal attorneys in Texas

Who Has The Burden of Proof?

By | Traffic Offenses

Does the State or the Defense have the Burden of Proof?

Fort Worth criminal attorneys in TexasArias v. State – 14th Court of Appeals (Houston) 2011

Carlos Arias was observed speeding by a police officer and pulled over. Arias was unable to provide proof of financial responsibility (proof of insurance), when asked by the police officer. Arias went to trial in the municipal court of record and after the close of State’s case-in-chief, Arias claimed that there were statutory exceptions to the requirement to establish financial responsibility and that the State had not negated them.  He appealed his conviction to the County Criminal Court at Law.

Generally, when a penal statute includes an exception as part of the statute itself, the State must negate the existence of the exception in the indictment of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception. Failing to negate an exception is the same as failing to allege an essential element of the offense and renders the indictment void. However, when an exception is in a separate section from the provision that states the offense, it is not essential for the State to negate the exception. This is different from an exception and called a defense, which must be raised by the defendant.

An “Exception” or a “Defense”

The key distinction is who has the burden of proof—an exception means the prosecution must prove beyond a reasonable doubt or the defendant should be acquitted; a defense means a defendant bears the initial burden to produce some evidence that supports the defensive theory. Once the defendant produces such evidence, the State then bears the ultimate burden of persuasion to disprove the defense beyond a reasonable doubt.  So, to be clear, the defense does not bear the “burden of proof,” but only a burden to produce some evidence of the defensive theory.  The burden then shifts to the state to disprove the defense.

The Court of Appeals found that no Texas court has determined whether the State must negate the exceptions to the financial responsibility requirement as an element of the offense or whether the exceptions are defenses that must be raised by the defendant. The Court of Appeals looked to the statute in the Transportation Code and decided if exceptions or defenses are listed. To do this they decided whether they are a necessary part of the definition or a description of the offense.

The Court first looks to the main code of “Requirement of Financial Responsibility.” They then found in a separate subsection, “Exceptions to Financial Responsibility,” which Arias relies on. The code only states that a person commits an offense if the person operates a motor vehicle in violation of the “Requirement of Financial Responsibility” section, but the exceptions are not mentioned.

The court finds that because they are not mentioned in the offense, the exceptions are therefore not a necessary part of the definition or description of the offense. This means that these are not exceptions that the State must negate, but merely defenses that the defendant has the option to bring evidence in to prove. Additionally, the State is not generally required to negate as an element of the offense matters “peculiarly within the knowledge of the defendant.” Here, these exceptions are things such as the character of the car, such as older than 25 years old. The court holds that under most circumstances, the defendant would be more likely than the State to know whether one of the exceptions applies.

This can be absolutely crucial for building your defense. An exception can get you acquitted if the State doesn’t prove beyond a reasonable doubt, whereas a defense is merely a chance to persuade the judge or jury. It appears that the key deciding factor is whether the “exceptions” are listed with the main code or are in a separate subsection.

Oct 21
0
Criminal Plea Bargains in Texas

Can a Rejected Plea Bargain Offer be Revived?

By | Plea Bargain

Criminal Plea Bargains in TexasContrary to television portrayals, most criminal cases never reach trial. While it is difficult to put a number of it, I would say that 90 to 95% of criminal cases are resolved by dismissal or plea bargain. Our Fort Worth criminal defense attorneys put the interests of the client first and will always pursue a dismissal and sometimes attempt to reach a favorable plea deal with the prosecutor as an alternative to the uncertainty of trial.  But in some occasions, a trial is the only way to go. What follows is a recent case opinion from the Texas Court of Criminal Appeals regarding a plea bargain situation gone wrong.

Rodriguez v. State (Texas Court of Criminal Appeals 2015)

On advice from counsel, Israel Rodriguez rejected a ten-year sentence plea bargain. Rodriguez was convicted and received eight life sentences.

Rodriguez filed for a new trial based on ineffective assistance of counsel; he believed his attorney’s advice regarding the plea offer was wrong. Rodriguez asked that the State be required to re-offer the ten-year deal.

The judge granted a new trial and ordered the State to re-offer the deal. The judge proceeded to reject the deal.

After denying the ten-year deal, the judge informed Rodriguez he could withdraw his guilty plea and go to trial or accept a 25-year sentence. Rodriguez rejected the 25-year sentence and filed a recusal motion, arguing that the judge had demonstrated prejudice. The judge recused, and a new judge was assigned.

Rodriguez filed a motion to require the State to re-offer the ten-year deal. The new judge said the original judge’s recusal had “wiped the slate clean,” including the ten-year plea offer, but he would accept a new agreement if one were presented. The state offered a plea deal of 25 years, which Rodriguez accepted. The judge accepted the plea agreement and executed the judgments of conviction.

Rodriguez argued on appeal that he was entitled to the original ten-year offer and the court was required to accept it. The court of appeals considered three factors: (1) whether Rodriguez would have accepted the original offer; (2) whether the State would have been likely to withdraw the offer; and (3) whether the judge would have likely accepted the agreement.

The court of appeals concluded Rodriguez had suffered inadequate representation. The court’s solution was for the State to re-offer the ten-year deal and have a judge who had not recused herself accept or reject the deal. The court did not agree that the judge was required to accept the ten-year deal. The case was remanded for the State to re-offer the deal.

The State filed for review of the court of appeals’ decision, alleging four errors:

(1) The voluntarily recusal should not have been considered.

(2) Nothing in the record supported the possibility of the original judge accepting the ten-year deal.

(3) The second judge should not have been required to order the State to re-offer the ten-year deal.

(4) The judgment of conviction should not have been reversed.

The CCA considered the same three factors considered by the court of appeals. Although Rodriguez’s convictions were vacated, he was still entitled to a determination of whether he had received effective counsel. The CCA agreed with the court of appeals that Rodriguez had been harmed by following his attorney’s advice in rejecting the offer. No evidence suggested Rodriguez would have rejected the deal. The State was not likely to withdraw the offer because the passage of time had made the victims’ testimony at trial unreliable.

The CCA said the only question was whether the first judge would have likely accepted the ten-year deal. No intervening circumstances would have given the judge a basis to reject the deal. However, Rodriguez did have an extensive criminal history, and the police reports for his charges were particularly damning. But nothing in the record indicated the judge would have rejected the ten-year deal if it had been presented to her prior to the trial. The CCA thus rejected the State’s second allegation of error.

The State agreed the first judge would have likely accepted the ten-year deal prior to trial, but it argued the voluntary recusal was irrelevant. No evidence indicated any prejudice against Rodriguez. Requiring the State to re-offer the ten-year deal and then rejecting it were proper rulings and did not require recusal. On the State’s first allegation, the CCA said, the court of appeals had erred.

The CCA sided with the State on its third allegation, finding Rodriguez had received exactly what he requested–a new trial with a clean slate and a decision on a plea agreement by a judge. The second judge was not obligated to give Rodriguez what the first judge had already given—consideration of the ten-year deal. Therefore, there was no requirement that the State re-offer the ten-year deal. The CCA did not consider the fourth allegation because its decisions on the first three allegations made the fourth issue moot. The CCA reinstated the 25-year sentence offered by the State, agreed to by Rodriguez, and accepted by the second judge.

An individual facing criminal charges will be advised by his Fort Worth criminal defense attorney regarding whether to accept the deal. Although the decision is ultimately up to the defendant, bad advice that ultimately leads to a worse outcome than the deal offered may present an opportunity for a new trial based on ineffective assistance of counsel.

Oct 19
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Immigrant Transport

Transporting Illegal Immigrants Requires Due Care

By | Immigration

Failure to Obtain Medical Help for an Illegal Alien Leads to Enhanced Sentencing for Transporter

US v. MunizUnited States v. Muniz (5th Circuit, 2015)

In August 2010, Demi Muniz planned to drive a group of illegal immigrants from Houston to Los Angeles. Just before the trip, one of the passengers appeared lethargic and dehydrated. Muniz contacted the passenger’s wife in Mexico, informing the wife that her husband was ill. The wife told Muniz that her husband was diabetic and needed to go to a hospital. Muniz decided against taking the passenger to the hospital, instead continuing the journey. Along the drive, the passenger began shivering and sweating, and eventually became unresponsive. Muniz dropped the unresponsive passenger off at a rest stop, where he was found dead the next day.

At trial, the jury found that Muniz placed the passenger’s life in jeopardy, and that he died as a result of Muniz’s conduct. Muniz was convicted of conspiracy to transport and conceal illegal aliens, resulting in a person’s death. Incorporating sentencing enhancements, she was sentenced to 85 months in prison, followed by a two-year term of supervised release. Muniz appealed to the United States Court of Appeals for the Fifth Circuit, challenging the district court’s imposition of sentencing enhancements that called for a tougher punishment.

The language of the sentencing enhancements used by the district court, stated the enhancements be used in sentencing for actions that “intentionally or recklessly creat[ed] a substantial risk of death or serious bodily injury” and “caus[ed] another person’s death.”

First, Muniz argued that the district court’s imposition of the enhancements was improper because the manner in which she was transporting the passengers—riding in a van—was not dangerous and because she did not know that the passenger was gravely ill. The Court of Appeals disagreed, saying that reckless conduct includes “abandoning persons in a dangerous…area without adequate food, water, clothing, or protection from the elements.” Here, Muniz abandoned the passenger in an area without medical care.

The Court of Appeals distinguished this case from an earlier decision in United States v. Gomez-Cortez, where a sentencing enhancement did not apply because a passenger who died was not transported in a dangerous manner, and the mere fact that the defendant had been told that the passenger looked ill did not put her on notice that the passenger could not travel at all. 34 F. App’x 152 (5th Cir. 2002). Muniz likely knew the passenger was ill by his dehydrated appearance, by displaying symptoms of being hot and cold, and by the phone call with the passenger’s wife, stating the passenger was diabetic and needed medical attention.

Second, the Court of Appeals stated that district courts properly apply the sentencing enhancement if the defendant’s conduct is a “but-for cause” of a person’s death, consisting of both affirmative acts and omissions. United States v. Ramos-Delgado, 763 F.3d 398, 401-02. Muniz decided not to seek medical treatment for the passenger, even though, as the district court determined, she was within close range of several medical facilities and that according to expert testimony, the passenger likely could have survived with medical care.

The Court of Appeals affirmed the district court’s application of the sentencing enhancements because Muniz’s failure to get medical aid for the passenger under these circumstances placed the passenger at a substantial risk of death or serious injury and caused his death.

A Federal criminal defense attorney in Fort Worth will understand the federal sentencing guidelines and sentencing enhancements for a variety of cases. As you can see from the case above, distinguishing previous case law precedent from the case above had a direct impact on establishing the criteria for sentencing enhancements for the defendant, sentencing enhancements that determined the length and severity of punishment. This essay does not replace legal counsel or advice.