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Brandon Barnett

Watkins 39.14 Texas Evidence

What Evidence Must a Prosecutor Disclose to the Defense?

By | Evidence

New CCA Opinion – Watkins v. State – Clearly Interprets the Duty of the State in Discovery.

Watkins 39.14 Texas EvidenceProsecutors in Texas must disclose almost all of the evidence in their possession to the defense. Disclosure is the rule and not the exception in Texas.1 Section 39.14(a) of the Texas Code of Criminal Procedure requires the prosecution to disclose anything that “constitutes or contains evidence material to any matter involved in the action. . .”2

The Texas Court of Criminal Appeals in Watkins v. State (see opinion HERE) recently interpreted the word “material” to mean the equivalent of “relevant,” while interpreting the phrase, “any matter involved in the action,” as covering “any number of subsidiary issues impacting the outcome of the proceedings.”3 This interpretation requires Texas prosecutors to disclose virtually all of the evidence in their possession—more than they are mandated to under the federal Constitution as interpreted by the Supreme Court in Brady v. Maryland. In fact, for some types of evidence, the statute does not require the evidence to meet any materiality requirement.4 According to § 39.14(h), evidence tending to negate the guilt or mitigate the punishment of a defendant must be disclosed, regardless of whether the evidence is considered material or requested by the defense.5

Article 39.14 and the case law that accompanies it effectively establish an open-file policy between the prosecution and defense. As the Watkins court put it: “[w]ith the exception of privileged evidence and evidence specifically covered by other statutory provisions, the only obstacle to disclosure of evidence not [exculpatory in nature] is the lack of a specific request.”6

The “materiality” language that the Watkins court addressed is actually language that was carried over from a previous version of Article 39.14—language with its own case law that prosecutors and trial courts carried into practice even after the statute was amended.

How did Prosecutors Interpret 39.14 Before Watkins?

The current version of Article 39.14 came about through the Michael Morton Act, signed into law by Governor Perry in 2013. This bill was a response to the case of Michael Morton, a man wrongfully convicted for the murder of his wife in 1987 after the prosecutor in that case withheld evidence that could have proven his innocence. Morton was exonerated in 2011 after DNA evidence revealed that someone else committed the murder, and the state legislature took up the task of passing a complete overhaul of discovery procedure in Texas.

Because the same language— “material to any matter involved in the action”—was retained by the Morton amendments, confusion persisted among some attorneys about whether the pre-Morton “materiality” jurisprudence is properly attributed to the new, post-Morton version of Article 39.14. However, as the Watkins court addressed, those pre-Morton cases never actually spoke to the issue of what “material” actually meant.7

The Confusion Surrounding “Material”

You see, the pre-Morton Article 39.14 gave trial courts the discretion whether to order the prosecution to disclose evidence upon a motion showing good cause from the defense.8 The pre-Morton “materiality” jurisprudence was inextricably linked with the standard for determining whether a trial court abused its discretion in refusing to issue such an order, and it did not have anything to do with the phrase, “material to any matter involved in the action.”9

The standard for determining whether a trial court abused its discretion in this way was whether the judge’s ruling deprived the defendant of access to evidence that was material to the defendant’s defense.10 “Material,” in this sense, was defined “’under Texas law in the due process terms employed by the Supreme Court in United States v. Agurs.’”11 This meant that a trial judge abused his or her discretion in refusing to order the disclosure of evidence when it was exculpatory in nature.12

Watkins Clearing Things Up

As we now know, the procedure that discovery followed before the Morton amendments was completely removed from Article 39.14, and the “materiality” jurisprudence that was tied to it went out the door as well.13 Because of the confusion that accompanied the judicial use of similar language in close contexts pre-Morton, it is understandable if some prosecutors may have—before Watkins—interpreted the, “material to any matter involved in the action,” language as being loaded with the pre-Morton jurisprudence. Other prosecutors, as shown in Watkins below, applied their own limiting interpretations to the language.

In Watkins, the defense counsel sent a discovery request to the prosecutor pursuant to § 39.14 asking for, “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.”14 He “also requested notice of the State’s intent to offer any extraneous offenses, which the prosecution provided.”15 Watkins was convicted of second-degree possession of a controlled substance, and during the punishment phase of trial, the state sought to introduce 34 exhibits for the purpose of proving up Watkins’ prior felony convictions for enhancement purposes.16 The defense objected—the prosecutor did not disclose the exhibits to the defense because he did not believe Article 39.14 applied to punishment.17 The Trial court overruled the objection, allowing the evidence to be admitted.18

The issue surrounding the prosecution’s non-disclosure eventually worked its way up to the Court of Criminal Appeals, where the Watkins court seized the opportunity to review the requirements of Article 39.14 in light of the Michael Morton Act amendments. In short, the Court laid out the history of Article 39.14 explained above, and it clearly established that Texas now has disclosure requirements that track the spirit of the Michael Morton Act.19

[1] Watkins v. State, NO. PD-1015-18 (Tex. Crim. App. 2021).
[2] Tex. Code Crim. Proc. Ann. art. 39.14(a) (West 2017).
[3] Watkins, at 24-25.
[4] Tex. Code Crim. Proc. Ann. art. 39.14(h) (West 2017).
[5] Id.
[6] Watkins, at 23.
[7] Id. at 35.
[8] TEX. Code Crim. Proc. art. 39.14 (2009).
[9] Watkins at 35.
[10] Id. at 41-42.
[11] Id. at 40 (quoting United States v. Agurs, 427 U.S. 97 (1976)).
[12] Id. at 41.
[13] See generally Watkins.
[14] Watkins at 4.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 5.
[19] See generally Watkins.

Marijuana Smell Warrantless Search Texas

Is the Smell of Marijuana Enough to Permit a Warrantless Vehicle Search?

By | Drug Crimes

Does the Smell of Marijuana Allow Officers to Search My Vehicle Without a Warrant?

Marijuana Smell Warrantless Search TexasIn Texas, the answer is yes. The possession of marijuana is a crime in Texas, so if an officer smells marijuana emanating from your car, he has probable cause to believe a crime is being committed. With probable cause, the law permits the officer to stop and search your car— regardless of whether you consent.

The officer has the ability to do this through what is called the “automobile exception” to the 4th Amendment’s warrant requirement.1 Generally, the 4th Amendment to the United States Constitution requires police officers to first obtain a warrant before they can search a person’s property. However, because automobiles can quickly move locations and evade law enforcement, the Supreme Court reasoned that it would be impractical to require officers to first secure a warrant before they are permitted to search a vehicle.2 So by claiming to smell marijuana, law enforcement officers can also claim to have probable cause to believe a crime is being committed—allowing them to take advantage of the automobile exception and search a vehicle without anything more.

Will the Search Laws Change if Marijuana Becomes Legal?

Maybe. There have been small changes in the law with the current trends in marijuana legalization. A couple of state courts adopted the rule that, after legalization or decriminalization, the smell of marijuana is no longer enough on its own to justify a warrantless search of a vehicle. For example, in Vermont, after the decriminalization of adult possession of less than one ounce of marijuana, the Vermont Supreme Court held that the odor of marijuana alone is insufficient to establish probable cause to search a vehicle.3 The Massachusetts Supreme Court ruled that the state’s decriminalization policy means that the possession of marijuana is now a civil infraction, making the smell of it an insufficient basis for officers to believe a crime is being committed.

However, most states where marijuana is legalized or decriminalized still follow the rule that the smell of it establishes probable cause in support of a vehicle search.4 This is because these states still criminalize the possession of larger amounts of marijuana—meaning that the smell of it still indicates that a crime could be underway. This is the logic that the Washington, Maryland, Colorado, and Arizona courts follow.5

But what about Texas?

As stated above, the possession of marijuana in Texas is a crime, and officers are still justified in searching vehicles if they smell marijuana coming from them. However, Texas legalized the cultivation of industrial hemp in 2019, which smells like just like marijuana. The issue of whether probable cause can still be supported by the odor of marijuana in light of hemp’s legalization was raised in state court in 2020, but the court left it undecided as the vehicle search in question occurred before the legalization of hemp.6 It remains to be seen if or when Texas will legalize marijuana, and what attitude Texas courts will take towards the question of marijuana odor and vehicle searches.

 

[1] Carroll v. United States, 267 U.S. 132 (1925).
[2] Id., at 153.
[3] Zullo v. State, 2019 Vt. LEXIS 1, * (Vt. January 4, 2019).
[4] Cece white, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 211 (2020).
[5] Id., at 211.
[6] Geberkidan v. State, 2020 WL 5406243, NO. 12-19-00296-CR (2020).

Filing False Police Report Texas

What Can Happen if I File a False Police Report in Texas?

By | Domestic Violence

If You Lie or Exaggerate in a Police Report or File a False Report, You Could be Charged with a Class B Misdemeanor

Filing False Police Report TexasAs Fort Worth criminal defense attorneys, we are often asked by witnesses and victims what might happen if it comes to light that the story they told the police was not exactly true. We often see this in Domestic Violence cases, when a victim decides that the statement he or she gave on the night of the incident was perhaps embellished a little during a fit of anger. Witnesses later become fearful when they realize they might have to take the witness stand and give a different (truthful) account of the event. They worry that they might be charged with a crime themselves for filing a false police report.

Filing a False Police Report in Texas | Texas Penal Code Section 37.08

Section 37.08 of the Texas Penal Code provides:

(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:
(1) a peace officer or federal special investigator conducting the investigation; or
(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

Filing a false report under Section 37.08 is a Class B Misdemeanor, punishable by up to 180 days in jail and a fine up to $2,000.

*Filing a false report about a missing child or missing person is a Class C offense, punishable by fine only.

Charges for Filing a False Report Do Not Happen Very Often in Texas

In our line of work, we see false reports on a daily basis. Be they embellished statements, outright lies, or  statements that simply omit important details, false reports happen all the time. In over 10 years, we have yet to see a case filed on a victim or witness for filing a false report or giving a false statement. While we’re sure it has happened, it doesn’t happen very often in our experience.  Perhaps it is because the state does not want to chill victims from reporting or because no one knows which story was actually true.  Either way, it is unlikely that a victim or witness who changes their story is going to be charged with an offense. Regardless, we always tell witnesses to simply TELL THE TRUTH.  If you tell the truth, even if the truth has changed since the first time you told the story, you’ll probably be in good shape.

*Note: this post does not discuss the offense of Perjury, which is a separate offense involving swearing to a false statement. See Texas Penal Code Section 37.02.

Recording Conversations Texas Wiretapping

Can I Record a Conversation Without the Other Party’s Consent in Texas?

By | Criminal Defense

Recording Conversations Without Consent in Texas | Wiretapping Laws

Recording Conversations Texas WiretappingWith roadway cameras at nearly every street corner, video surveillance in businesses, doorbell cameras on homes, web cams on computers, and recording capabilities on mobile phones – we must navigate carefully in a digital world. We’ve seen titillating news reports exposing a secret audio tape of a public figure having scandalous phone conversations, or video surveillance of questionable traffic stops that escalate in shocking fashion. You may have had a suspicious feeling that you were being recorded, or on the other hand, felt as if you needed to record a conversation with another for your own protection.

With privacy seemingly harder to come by as compared with days long past—what does Texas law say about recording conversations? Is it illegal to record a phone conversation with another person? What about in person?

The short answer is: YES, you can record a conversation with another person without that person’s consent. But this answer requires more explanation.

Recording Phone Calls in Texas | Texas is a One-Party Consent State

Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you’re recording then you have probably given yourself consent to record the conversation. Generally speaking, state wiretapping laws turn on whether the state is a one-party consent state. While some states require the consent of all of the parties to a conversation prior to recording, Texas permits the recording of telephone calls, so long as the consent of one of the parties is obtained. As stated, if you are one of the parties on the phone call, then you may consent to having your own conversation recorded—you need not alert the other party. Additionally, a parent may give vicarious consent to the recording of a child’s conversation if the parent has a good faith objectively reasonable belief that the recording is necessary for the welfare of the child.

However, if during a phone call there are multiple parties who are in different states, then be aware that other state laws may require pre-recording consent of all of the parties. In this scenario, if the recording party obtains consent from the other parties before the recording begins, then the recorder is not in violation of wiretapping laws.

See this link to learn more about the various state wiretapping laws.

Recording In-Person Conversations in Texas | Can I Record Someone Else’s Public Conversation?

Texas law (Penal Code §16.02) does not permit you to record in-person communications when the parties have an expectation that such communication is not subject to interception (i.e. If there is a reasonable expectation of privacy). If you wish to record a conversation to which you are not a party, all of the parties must give consent before the recording device is turned on or there must be no reasonable expectation of privacy (e.g. If the recording is taken from your doorbell camera and the parties are standing on you doorstep). If you are a party to the conversation, record away.

Further, you are able to record in-person communication at a public place, like a mall food court or at a football game for example, where parties do not have the expectation of privacy. Remember—if you say it in a public place, within earshot of others who may overhear, you do not have an expectation of privacy in those statements. Generally, such statements may be recorded without violating that state’s wiretapping laws.

A Word of Caution of Recording Conversations in Texas

Please be aware that there are both federal and state wiretapping laws that may limit your ability to making recordings of telephone calls or in person conversations. This article addresses state wiretapping laws in Texas only. Additionally, if a person has violated a state or federal wiretapping statute, he may be both charged criminally and be sued civilly by the damaged party.

Further, while a person may have successfully recorded a conversation under state and federal wiretapping laws, the act of disclosing the recording to other third parties could be, in and of itself, punishable criminally or civilly under other legal theories (such as slander, for example).

If you are faced with a wiretapping charge, or have questions about wiretapping, please contact an attorney who will address both the state and federal regulations as they are related to the facts of your specific case. Wiretapping charges are potentially serious felonies that could land a person in jail or prison, with fines ranging from $200 to $10,000. If you are faced with charges related to wiretapping in Texas, please contact our offices at (817) 993-9249 for a consultation.

Summary on Texas Wiretapping

  • A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
  • A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
  • A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
  • It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.

This article is for educational purposes only and should never be substituted for legal advice.

Contractor Fraud Texas Tarrant

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

By | Fraud

Contractor Fraud Texas TarrantHave 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 2020, 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.

Scholarship Winners BHW

2020 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2020 Scholarship Awards

BHW Scholarship WinnersThis was the 5th 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.

2020 Winner – Military Veteran Law Student Scholarship

The winner of the 2020 Military Veteran Law Student Scholarship is:

MATTHEW DUBRON

Matthew Dubron is a US Army veteran that served in the 82nd Airborne. Mr. Dubron currently attends Creighton University Law School. Congratulations Matthew Dubron. Best wishes as you continue toward your law degree.

2020 Winner – Military Dependent Scholarship

The winner of the 2020 Military Dependent Undergraduate Scholarship is:

KEVIN ARELLANO

Kevin Arellano is an Army dependent whose father served father served for over 20 years. Mr. Arellano currently attends the University of Texas at Austin and is pursuing a degree in neuroscience and biology. Congratulations Kevin Arellano. Best wishes 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

SBA Loans Criminal History

SBA Loans Limitations Based on Criminal History

By | Criminal Defense

Can I apply for an SBA Loan if I have a criminal history?

SBA Loans Criminal HistoryCountless small businesses have been impacted by the COVID-19 pandemic. The US Government has several different loan programs offered through the Small Business Administration aimed at helping small business get through the crisis and maintain jobs for their employees. Many of the SBA loan programs for the COVID-19 crisis can be found on the SBA website COVID-19 section.

One of the questions that we have received during the last couple of weeks is whether a person with a criminal history can apply for an SBA loan. The answer is…it depends. It depends on the nature of the criminal offense.

What will disqualify me from applying for an SBA loan?

When it comes to criminal history, the following will disqualify a company and make it ineligible for SBA assistance.

If an owner of the company (who owns 20% or more) answers YES to any of the following questions taken from the SBA application, then the company is NOT eligible to apply for SBA assistance:

  • Are you currently incarcerated?
  • Have you been adjudicated for a felony in the preceding 5 years? This includes
    • Felony conviction;
    • Plea of guilty to a felony offense;
    • Plea of nolo contendere (no contest) to a felony;
    • Participating in a pre-trial diversion program for a felony offense;
    • Probation or Deferred Adjudication for a felony offense.
  • Are you currently on probation for a felony or a misdemeanor?
  • Are you currently on parole?
  • Are there pending criminal charges against you that have not yet been adjudicated (felony or misdemeanor)?

*NOTE: There is also a question on the Economic Injury Disaster Loan that asks whether an applicant has been arrested (even if the charge was dismissed) for any criminal offense (other than a minor motor vehicle violation). It is unclear whether an arrest by itself is a disqualifier or just a point of inquiry.

If a 20% (or more) owner answers YES to any of those questions, then the company will not even be able to complete its application for SBA assistance.

In the past, it seemed that the SBA was only concerned with felony criminal history (see 13 CFR 120.110), but the new applications for the COVID relief do not distinguish between felonies and misdemeanors when it comes to either active probationers or individuals with pending charges.  This is especially difficult for individuals that have a pending criminal charge to which they have pleaded not guilty and not yet received their day in court. To sink their business while at the same time presuming them innocent is not in keeping with the spirit of the presumption itself.

Please be reminded that it is a federal offense to falsify a loan application, so please don’t do that.

Paycheck Protection Loan Application

Economic Injury Disaster Loan

Reckless Texas Penal Code

What does Recklessness Mean in Texas Criminal Law?

By | Criminal Defense

Defining “Recklessness” Under the Texas Penal Code

Reckless Texas Penal CodeThere are some criminal offenses that require the state the prove that the defendant acted “recklessly” or with “criminal recklessness.” In a colloquial sense, we (including prosecutors) often think of recklessness as another word for carelessness, but it actually has a specific definition in the Texas Penal Code.

Defining “Recklessness,” Tex. Penal Code Section 6.03(c) states that “a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist, or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

What Does the Texas Court of Criminal Appeals Say About Recklessness?

Unpacking the legal standard of recklessness, The Texas Court of Criminal Appeals reasons that…

“Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state.” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). “Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness – the actual disregard of a known substantial and unjustifiable risk.” Id.

Criminal negligence and recklessness differ from one another only in terms of mental state:

  • Criminally negligent defendant “ought to be aware” of a substantial and unjustifiable risk;
  • Reckless defendant is subjectively aware of an identical risk but disregards it

The two prongs of gross negligence or recklessness are:

  • Subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct.
  • Objectively, the defendant’s conduct must involve an extreme degree of risk (the “extreme risk” prong is not satisfied by a remote possibility of injury or high probability of minor harm, but the likelihood of serious injury to the plaintiff).

Reckless conduct…

  • Is the conscious disregard of the risk created by the actor’s conduct;
  • Mere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however, serious the consequences may be, do not suffice to constitute criminal recklessness;
  • Criminal recklessness is of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of a conscious indifference to consequences; or which shows such wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.

Recklessness: Texas Case Law Examples

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007): The defendant was convicted after her children died in an accidental house fire while her boyfriend was babysitting. The defendant took the children to a house without working utilities and left them under her boyfriend’s care with a candle lit in their bedroom. The court held that there was legally insufficient evidence that defendant consciously disregarded a substantial and unjustifiable risk that the children would suffer serious bodily injury in a house fire. The court also said that the defendant’s stupidity did not constitute reckless disregard. The defendant was not criminally responsible for the result

Mills v. State, 742 S.W.2d 831, 1987 Tex. App. LEXIS 9214 (Tex. App. Dallas Dec. 18. 1987, no writ): The defendant’s conviction was upheld where circumstantial evidence supported the conclusion that defendant placed a child in a tub of hot water. The Court found that the jury could reasonably have found defendant acted recklessly with regard to that child’s care in violation of Tex. Penal Code § 6.03(c).

Ehrhardt v. State, No. 06-02-00208-CR, 2003 Tex. App. LEXIS 7248 (Tex. App. Texarkana Aug. 26, 2003): Where the evidence in an assault trial showed defendant struck the victim in the face, the court found that the defendant was reckless as to whether her conduct would result in bodily injury.

Criminal Negligence Texas

Defining Criminal Negligence Under Texas Law

By | Criminal Defense, Criminal Negligence

What is Criminal Negligence in Texas?

Criminal Negligence TexasIn Texas, there are some criminal offenses for which a person can be liable if they acted with “criminal negligence.” When most people think of “negligence,” they think of a civil standard used in lawsuits for money damages. But criminal negligence, the courts have reasoned, is different from ordinary civil negligence.

Section 6.03(d) of the Texas Penal Code states that “a person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

How does Criminal Negligence Differ from Civil Negligence in Texas?

Civil or simple negligence means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would not have done under the same or similar circumstances. Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012). Conversely, conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence. Id. The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. Id. The risk must be substantial and unjustifiable, and the failure to perceive it must be a gross deviation from reasonable care as judged by general societal standards by ordinary people. Id.

For example: The Texas Court of Criminal Appeals has held that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it (i.e., risk must be “substantial and unjustifiable,” and the failure to perceive that risk must be a “gross deviation” from reasonable care).

In finding a defendant criminal negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment. The degree of deviation from reasonable care is measured solely by the degree of negligence, not any element of actual awareness. Whether a defendant’s conduct involves an extreme degree of risk must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another.

Case Law Examples of Criminal Negligence Standard in Texas

McKay v. State, 474 S.W.3d 266 (Tex. Crim. App. 2015): The Court of Criminal Appeals holding insufficient evidence of criminal negligence to support Defendant’s conviction for injury to a child after he spilled hot water on the two-year-old child while he was in the kitchen, because there was no evidence that Defendant failed to perceive a substantial and unjustifiable risk to the child. There was no showing that the child was often underfoot or that defendant knew the child could likely be under his feet while moving around in the kitchen.

Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017): The Court of Criminal Appeals holding insufficient evidence to support defendant’s conviction of criminally negligent homicide because the evidence presented does not show that Defendant’s failure to maintain a safe driving speed and keep a proper distance from other vehicles was a gross deviation from the standard of care that an ordinary diver would exercise under all the circumstances as viewed from Defendant’s standpoint at the time of his conduct.

Tello v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005): The Court of Criminal Appeals upheld Appellant’s criminal negligent homicide conviction reasoning that Appellant should have perceived a substantial and unjustifiable risk of death from using a faulty trailer hitch without safety chains on a public road. The homemade trailer unhitched from Appellant’s truck and killed a pedestrian.

TSA Airport Gun Charges Texas

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

By | Criminal Defense, 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 or Love Field, 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).

 

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What Can Happen if I Accidentally Bring a Gun Through Security at DFW Airport or Love Field 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 Section 46.03. The detention and arrest could take several hours and will likely cause you to miss your flight as you move through the process. The DFW Airport or Love Field Police will 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 (for DFW Airport case) or Dallas County District Attorney (for Love Field cases).

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

Depending on how the authorities choose to proceed, you will likely be charged with 3rd Degree Felony. A 3rd Degree Felony carries a range of punishment from 2-10 years in prison and a fine up to $10,000. The Tarrant County DA typically files the case as a 3rd Degree Felony, while cases that originate in Dallas Love Field Airport usually wait for Grand Jury review before they are filed.

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.

 

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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. There is no such exception for non-LTC holders. Licensed concealed firearm holder from other states should also be given the same opportunity to leave the secured area immediately in order to avoid arrest.

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 Criminal Conviction on My Record For Accidentally Bringing My Gun to the Airport?

It depends. Many of our clients that were charged with Unlawfully Carrying a Weapon in the airport have had their cases dismissed. In fact, most 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.

 

CALL US TODAY – (817) 993-9249