psychosexual evaluation sex offender risk assessment

Psychosexual Evaluations: A Risk Assessment for Sexual Allegation Cases

By | Sex Crimes | No Comments

psychosexual evaluation sex offender risk assessmentA psychosexual evaluation is a method utilized by courts, prosecutors, and defense attorneys to provide a scientific basis to determine with a person is likely to be a repeat sexual offender. The evaluation is performed by a state-licensed mental health professional and, if requested by the defense, it is completely confidential for the client and their attorney.

Psychosexual evaluations are routinely performed to:

  • Identify deviant sexual behavior patterns
  • Evaluate the risk level of sexual and non-sexual recidivism
  • Recommend the type of treatment options that will be most beneficial to the client
  • Identify specific risk factors that should be targeted during treatment

Explaining the Psychosexual Evaluation Process

How long does the evaluation last?

The evaluation usually lasts a full day, but can sometimes spill over into a second day. However, the entire evaluation can be completed in about six hours. A typical schedule for the evaluation will last from 8:30am – 5:00pm, with breaks between sections of tests.

The Evaluation Consists of Four Parts

  1. Clinical interview
  2. Psychometric tests
  3. Physiological assessment of sexual arousal
  4. Risk assessment

Clinical Interview

The clinical interview lasts about one hour and serves to help the therapist and the client get to know each other before the tests begin. It also gives the client an opportunity to talk about the allegation with the therapist. This is the point where the therapist will document their initial impressions and provide detailed notes on the client. It is important that the person is honest and open about the nature of the allegation. If conducted at the request of the individual’s attorney, the evaluation is covered under the attorney-client privilege and the attorney cannot disclose the results or what was said without the client’s permission.

Psychometric Tests

The psychometric tests are comprised of a personality inventory, sexual inventory, and intelligence test. These tests are primarily in written formats, including true or false questions. The personality inventory allows the therapist to evaluate the client’s personality type, which will be factored in throughout the assessment. The sexual inventory is the longest portion, consisting of about 560 items. It is a thorough assessment of the client’s sexual history, background, and development. Again, this portion of the test factors into the therapist’s overall assessment of the client’s situation. The final portion is the intelligence test. This portion only lasts about twenty minutes and is essentially an IQ test. The intelligence test is important because it allows the therapist to effectively advocate that the client can handle the mental demands of treatment.

Physiological Assessment of Sexual Arousal

The physiological assessment helps the therapist understand whether the allegation would be outlier behavior for the client or not. This is primarily achieved by gaining an understanding of the client’s sexual preferences using the penile plethysmograph (PPG). The PPG operates by measuring blood pressure and erectile changes in the penis of the client due to the introduction of different visual stimuli. The PPG also monitors the client’s breathing to determine whether they’re attempting to deliberately falsify the results. Because accurate results are required for the therapist to make a strong evaluation on behalf of the client, the client should not attempt to cheat the PPG. Due to the nature of the visual stimuli and the physical intrusiveness of the PPG, this is considered the most difficult part of the evaluation for individuals being tested.

Rarely, a polygraph will also be performed. The polygraph is only used when the client denies any actual physical contact because the chance of recidivism is greatly diminished if there is no physical contact. If the polygraph is failed, then the results will not be used in the therapist’s evaluation because they do not indicate anything significant about the client’s situation.

Risk Assessment

The risk assessment consists of two parts, general criminality and sexual recidivism. The general criminality portion determines the client’s risk of recommitting crimes, while the sexual recidivism portion determines the client’s risk of recommitting sexual crimes. This part of the psychosexual assessment is extremely important because it allows the therapist to assign the client a risk profile to reoffend, both in general criminality and in sexual criminality. The therapist’s testimony that the client is a low risk to reoffend can be crucial for the defense in asserting that the client does not deserve a harsh punishment for the original allegation.

Confidentiality

When the psychosexual evaluation is obtained as part of the defense case preparation, it is completely confidential. Only the client and his attorney will be provided with it. Neither the client’s spouse nor any government entity can see the evaluation, unless it is used in court, and the defense attorney will only use the evaluation in court if it is beneficial to the client’s case. The evaluation is occasionally used at trial, but it is more often used during the plea-bargaining stage to improve the client’s case or during a sentencing portion of a trial.

Advice for Clients and Attorneys Regarding Psychosexual Evaluations

Clients should be honest with the therapist because it allows for a more reliable and accurate evaluation, which will be more beneficial to the client’s case. If the client lies or attempts to cheat the tests, the therapist will not be able to provide a good evaluation and may not be able to testify as well on behalf of the client.

Attorneys should provide information the therapist regarding the charges being made against the client (within the limits of discovery laws). Not only does this allow the therapist to factor that into the evaluation, but it also bolsters their testimony in court as they have accounted for the charges and facts of the case already. The stronger and more complete the therapist’s evaluation, the more likely that it will stand up in court against tough cross-examination.

Denton County Pretrial Diversion PTD

Denton County Pre-Trial Diversion Program (PTD)

By | Diversion Program | No Comments

Pre-Trial Diversion (PTD) Denton County, Texas.  A Second Chance for First-time Offenders.

Denton County Pretrial Diversion PTDWhen someone is charged with a criminal offense and is experiencing their first encounter with the criminal justice system, the process can be daunting. A first-time offender typically has two primary concerns: 1) Will I go to jail? and 2) Can I keep this offense from going on my record?

While there may be options available to keep a conviction off of a person’s record, the goal for most first-time (and one-time) offenders is to land in a situation making it possible to erase all records related to the arrest from existence. Under State law (Texas Government Code 76.011), counties are allowed to establish pre-trial diversion programs. Upon successful completion, these programs allow for certain first-time offenses to be discharged and ultimately expunged from an individual’s record.

Thankfully many counties across the State take into consideration the fact that a person has no prior history and may have just made a one-time mistake. Denton County, Texas is no different. First-time offenders that have been arrested for certain non-violent offenses may be eligible for a pre-trial diversion program in Denton County.

Eligibility for Pre-Trial Diversion in Denton Texas

To be eligible for a pretrial diversion program in Denton County, Texas an individual’s case must meet the following criteria:

  • The individual must be employed or enrolled in an accredited school
  • The individual charged must admit to guilt of the offense and accept responsibility
  • The individual must have had no prior arrests
  • The individual must report monthly to a probation officer
  • The individual cannot commit any new offenses and must abstain from the use of illegal drugs and alcohol

Also, ultimate discretion to allow a person to participate in a pre-trial
diversion program rests solely with the District Attorney. The District Attorney must approve of each applicant even if all criteria are met.

How Pre-Trial Diversion in Denton County, Texas Operates

Individuals participating in the pre-trial diversion program in Denton County are supervised by the Denton County Community Supervision Department (DCCSD). Individuals must pay a monthly supervision fee. DCCSD can and will tailor each program to each particular individual. A person may be required to participate in additional classes, community service or other rehabilitative programs as a result of his or her participation in the program. In addition, if any restitution has been assessed in favor of the victim in a case, repayment of that restitution could be made a condition of the program as well.  Typically, PTD lasts 12 months, but in some cases, it can be extended to 18 months.

Exceptions for Admission into the Denton County PTD Program

Because the District Attorney has ultimate discretion on allowing a person into the pre-trial diversion program, even a person who does not meet the minimum requirements may be allowed to enter into a pre-trial diversion.

The Final Result of Successfully Completing a Pre-Trial Diversion in Denton County, Texas

Upon successful completion of the Denton County Pre-Trial Diversion program, the District Attorney files a Motion to Dismiss the case and the case becomes eligible for an expunction.

FORT WORTH

Primary Location
209 W. 8th St
Fort Worth, TX 76102
817.993.9249

KELLER

*By Appointment Only
204 S. Main St #195
Keller, Texas 76248
817.482.6770

stealing presents christmas theft

Don’t Be a Grinch: Punishments for Christmas Package Theft in Texas

By | Theft | No Comments

stealing presents christmas theftThroughout the year package thefts occur on a fairly regular basis. But, as Christmas draws near and package delivery increases, so too do the thefts. While packages left on doorsteps and out in the open may seem to be easy targets for thieves, the consequences of getting caught are rarely considered.

What Can Happen to Individuals Who Steal Packages?

Porch pirates can face stiff penalties for stealing packages. In Texas, theft is classified by the amount of property that is stolen. Depending on the amount of the items stolen, a person caught stealing packages can face anywhere from a Class C misdemeanor punishable by a fine of up to $500 up to a First Degree Felony facing 99 years or life in the penitentiary. The latter would require someone stealing an item worth more than $300,000. While this may be unlikely, a thief wouldn’t know what he or she is stealing until he opens up that box. In addition, if committed within the same criminal episode, the aggregate amount of the items stolen could increase the punishment ranges for the offense as well.

What Happens When Multiple Individuals Act as a Team to Steal Packages?

The consequences of people acting in a team to steal packages can increase the acts to the offense of Engaging in Organized Criminal Activity. In Texas, a person commits the offense of Engaging in Organized Criminal Activity if with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit theft. Tex. Penal Code 71.02. This increases the punishment one category higher than the offense originally committed. Most often, these types of cases are filed as 3rd degree felonies which carry a range of punishment of between 2-10 years in prison and up to a $10,000 fine.

Punishments for package theft can be harsh. While a person may be stealing property worth only a few dollars, they may also be stealing property worth thousands. The potential punishment a person faces for package theft may not deter thieves but there are certain other things that citizens can do to prevent these acts from occurring.

How to Prevent Package Thefts

The primary means by which package thefts are being prevented are with the increasing use of video surveillance. Individuals looking to steal packages off of front porches are becoming more and more aware of doorbell cameras and other small home surveillance cameras. The increased media coverage of these incidents and the increased capture of thieves by way of theses surveillance methods is enhancing deterrent efforts.

Despite the fact that security cameras are gaining in popularity (and the media reports on a regular basis of people being caught because of them), package thefts have not been eliminated. There are still those individuals that choose to ignore the possibility of getting caught and the potential consequences. And, for those folks, maybe it would help to reflect on the words of The Grinch, “Maybe Christmas doesn’t come from a store. Maybe Christmas…perhaps…means a little bit more!”

But for those individuals who persist and ignore the warnings and advice – and reflections from the Grinch – the BHW phone line is always open – just don’t say we never told you so!

Emergency Aid Police Arrest Texas

Does the Emergency Aid Exception Apply to Vehicle Stops?

By | Warrantless Search | No Comments

Officers Are Justified in Stopping Vehicles to Render Emergency Aid Making Evidence Found in the Process Fair Game

Emergency Aid Police Arrest TexasThe Fifth Circuit Court of Appeals recently handed down an opinion dealing with the emergency-aid warrant exception and whether that exception extends to vehicular stops. The issue facing the court was whether a traffic stop of Appellant Toussaint to warn him that a gang member had ordered a hit on him was justified under the emergency aid exception to the Fourth Amendment. The court reversed the suppression order from the trial court holding that the emergency aid exception did justify the stop because this was a proper exigent circumstance.

US v. Toussaint (5th Circuit – 2016)

The Facts—Trial Court Found the Exigent Circumstances Had Expired

An FBI agent monitoring a wiretap overheard a suspected gang-member order his associate to kill Toussaint who could be found in a specific neighborhood driving a specific car, a silver Infiniti. Immediately the agent contacted a local police officer who met with several other officers to determine the plan to locate and warn Toussaint of the hit. The officers drive to the specified neighborhood and search for silver Infinities until they find one with an occupant leaving the neighborhood. The officers follow the vehicle, observe the driver, Toussaint, speeding and pull him over. Once pulled over Toussaint flees the officers on foot until he was caught and placed under arrest. During a search of Toussaint incident to arrest officers found a pistol and a bag of crack cocaine. The amount of time between the FBI agent overhearing the initial threat and Toussaint’s arrest was about 45 minutes.

Toussaint was charged with drug and firearm violations. Toussaint filed a motion to suppress the evidence obtained from the stop arguing that the stop was not justified. The trial court granted Toussaint’s motion to suppress finding that the exigency of the emergency had expired by the time the officers stopped Toussaint.

The Court of Appeals Reversed the Trial Courts Decision—Holding the Emergency-Aid Exception Applied in this Case and the Exigency Had Not Expired

The court held that the emergency-aid exception extends to vehicular stops when under the circumstances of the need to assist persons with serious injuries or threatened with serious injury. The emergency aid exception allows officers to conduct warrantless searches or seizures when there is a need to assist persons with serious injuries or threatened with a serious injury. Stuart, 547 U.S. 398 at 483. Under this exception, officers can enter areas they otherwise are not allowed in order to help someone. While the majority of such cases involve warrantless entries into homes, the court determined that there is no logical reason to not extend the exception to vehicular stops. Additionally, looking to reasonableness, “the ultimate touchstone of the Fourth Amendment,” the court stated “the benevolent act of trying to notify a driver that his life is in danger epitomizes reasonableness.” Thus, the court held that the emergency aid exception can be used to justify a traffic stop under proper exigent circumstances.

Then, the court held that the exception applied in this case and officers were justified in stopping Toussaint. The court stated that trial courts must examine objective facts of the circumstance in determining whether there was an objectively reasonable basis for believing exigency actually existed. The officers’ subjective motivations are never relevant in the determination. When the officers received what all parties agreed was a credible threat against Toussaint, who was located in a specific neighborhood and driving a specific vehicle, the court held it was reasonable for the officers to believe there was a serious threat on Toussaint’s life. Further, that exigency still existed at the time of the stop because the threat on Toussaint’s life had not ended within the 45 minutes it took officers to locate him and warn him. Since the stop was justified the search was proper and evidence was legally obtained because it would be contrary to the needs of law enforcement to force officers to ignore evidence found when they stop vehicles to render emergency aid.

In conclusion, the court held that the emergency aid exception extends to vehicular stops and that here, the stop of Toussaint was justified under this exception because there was a serious threat on his life. Accordingly, the court reversed the suppression order because the trial court was improper in granting the motion.

Pretext Phone Calls Texas

Pretext Phone Calls in Sexual Assault Investigations

By | Sex Crimes | No Comments

Pretext Phone Calls TexasDid you ever get the feeling like someone is recording your conversation? Texas is a one party consent state meaning your conversations can be recorded and listened to by third parties as long as one party to that conversation consents. In sexual assault cases, especially where the victim knows the suspect, recorded phone calls between the victim and the suspect are often used in the investigation of the alleged assault. These recorded calls are called “pretext” phone calls. Not only will these phone calls be used to build a case against a suspect but might also be used in court against the suspect.

What is a Pretext Phone Call?

A pretext phone call is a tool used by police officers in the early stages of investigation, especially in sexual assault investigations. It is a tape recorded phone call between the victim and the suspect made by the victim or a close friend of the victim. The phone calls will be made under the supervision of police officers and most preferably the lead investigator or detective. The victim will be provided with all of the equipment necessary to record the phone call. Additionally, the victim will be given direction by the officers on the time of day or night to call the suspect, what type of questions to ask the suspect, and what to prepare for. The victim will be told to ask questions in certain ways that are more likely to solicit an incriminating response instead of just going full speed ahead with the “Why did you rape me?” question, which, for good reason, will cause the suspect to shut down or become defensive stating they did no such thing. An example of a question a victim might told to ask is “Why did you have sex with me after I pushed you way and told you to stop?”

The purpose of pretext phone calls is to, hopefully, obtain an incriminating statement by the suspect. The statements made by the suspect will be used to build the case against the suspect by corroborating information that the victim has told the police officers and help make victim testimony more credible in front of a jury.

Pretext Phone Calls—Used in Drug or Alcohol Related Sexual Offenses and Where the Victim and Suspect Know Each other

Pretext phone calls are often utilized in cases where the victim and suspect know each other. This is because the victim will already have the suspects phone number and vice versa or the victim can come up with a creative way for how they got the suspect’s number, i.e. “I got your number from John Doe, our mutual friend.” Also, they can be particularly helpful in drug and alcohol related sexual assault cases where they knew each other, even if only acquaintances. In such an instance, the victim will be directed to ask questions such as, “You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why?”.

When Can Pretext Phone Calls Be Made Under Texas Law?

Preferably, pretext phone calls should be made before the suspect knows there is an investigation against him. For legality purposes, pretext phone calls must be made before a suspects Sixth Amendment right to counsel attaches. Rubalco v. State, 424 S.W.3d 560. The Sixth Amendment right to counsel attaches “at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Id.

Thus, if there are no Sixth Amendment issues, pretext phone calls will likely be admissible against the suspect in trial. Id.

Be Aware That Your Phone Conversations Might Be Used Against You

Being in the state of Texas we should all be aware that every phone conversation we have can legally be recorded but you should be especially aware if the conversation gets serious. If you have any “hunch” that an investigation against you might be underway for an alleged sexual assault, contact our experienced attorneys today to learn your rights during these investigations.

Drug Found in Car Driver Charged with Possession

Do Drugs Found in a Car Automatically Belong to the Driver?

By | Drug Crimes | No Comments

Between the Driver and Two Passengers, who is in Possession of the Drugs Found in the Middle Compartment in Plain View?

Drug Found in Car Driver Charged with PossessionThe Court of Criminal Appeals recently handed down an opinion dealing with legal sufficiency of evidence in the context of possession of a controlled substance when it was not found in the exclusive possession of the defendant. The issue facing the Court was whether Appellant Tate intentionally or knowingly possessed methamphetamine by exercising “control, management or care” of the methamphetamine and he knew it was methamphetamine. Tex. Penal Code §1.07(a)(39). The Court found that a rational jury could infer that the owner and driver of a vehicle possessed the controlled substance found in the vehicle in plain view even when there were two other passengers.

Tate v. State (Tex. Crim. App. 2016)

The Facts—Trial Court Found Sufficient Evidence

Tate was pulled over by Detective Beckham due to his outstanding warrants. When pulled over Tate had two passengers. Tate explained that he owned the vehicle but did not have any proof of ownership. Tate was arrested after officers confirmed his outstanding warrants. The police searched Tate, the two passengers, and their belongings, but did not find any weapons or contraband. During Officer Beckham’s inventory search of the vehicle, he found a syringe loaded with a substance later identified as .24 grams of methamphetamine. He found the syringe in “plain view” in a compartment underneath the air conditioner and heating controls.

Tate, the owner of the vehicle, was charged with possession of a controlled substance. At trial, Officer Beckham described the compartment as “directly to the right” of Tate, accessible to Tate and the front-seat passenger but not the backseat passenger. He also testified that even though he couldn’t tell exactly what the front-seat passenger was doing, he observed her moving a lot but never towards the compartment. Tate argued that one of the passengers put the syringe there when Tate was talking to Beckham at the rear of the vehicle. The trial court found Tate guilty, relying on Tate’s “self-purported” ownership of the vehicle and his proximity to the syringe.

The Court of Appeals Reversed the Trial Court’s Decision

The Court of Appeals held that there was “insufficient evidence to prove that Tate had intentionally and knowingly possessed methamphetamine.” The court rejected the proximity argument made by the trial court for two reasons:

  1. There was insufficient evidence to show the syringe was in the car before Tate got out.
  2. Officer Beckham observed the front-seat passenger moving a lot but couldn’t tell exactly what she was doing.

Additionally, the court said that since Tate’s ownership could not be proven it was insufficient evidence to prove possession.

The Court of Criminal Appeals Reverses the Court of Appeals—Holding Defendant’s Ownership and Control of Vehicle Where Controlled Substance was Found in Plain View and Within Defendant’s Reach is Sufficient Evidence to Convict for Possession of a Controlled Substance

The CCA held that a rational jury, with these facts, could reasonably infer that the syringe was in the car the entire time. In coming to that decision the Court relied on the fact that the jury believed Beckham’s testimony that he never saw her reach for the compartment, that the back-seat passenger could not reach it, Tate said he owned the vehicle, and that the syringe was found in plain view. Therefore, a rational jury could infer that Tate would be aware of items in his vehicle in plain view, thus find he intentionally or knowingly possessed the methamphetamine in the syringe.

In making this decision the Court relied on the Jackson standard: “Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The Court found that the court of appeals incorrectly applied this standard. The Court pointed to a few links that the jury could reasonably rely on to find Tate guilty, which include:

  1. the contraband was found in the vehicle that Tate owned and was driving;
  2. the contraband was in plain view and conveniently accessible to Tate; and
  3. the jury could reasonably believe Beckham’s testimony that the front-seat passenger did not reach over to the compartment and that the back-seat passenger could not reach the compartment.

Thus, when the standard is applied here a rational jury could find the evidence sufficient to find Tate intentionally or knowingly possessed the methamphetamine beyond a reasonable doubt.

Decision of the Criminal Court of Appeals—Evidence is Legally Sufficient Where a Rational Jury Could Infer Guild Beyond a Reasonable Doubt

The CCA found that the evidence at trial was sufficient for the jury to reasonably find Tate guilty beyond a reasonable doubt and that the court of appeals overstepped its bounds in assessing the legal-sufficiency of the evidence.

Evil Clown Scare Texas

Hold Your Fire…Don’t Shoot the Clowns! Yet.

By | Self-Defense | No Comments

Evil Clown Scare TexasRecently, a friend asked me if it was legal for individuals to dress as clowns and scare the public. He also wanted to know what would happen if he were frightened by one of these clowns and shot the clown. While not asking the latter in complete seriousness, these questions do bring up potential criminal law issues.

Is it Legal to Dress as a Clown in Public?

There’s no state law that we’re aware of that makes dressing up like a clown in public per se illegal.

The only potential laws that may be applicable to these situations would be individual city ordinances. A search of city codes in a handful of Texas towns around the Metroplex reveals no ordinance specifically prohibiting dressing like a clown in public. The only codes we are able to find related to costumes primarily had to do with a prohibition on costumes which fail to cover private areas in regards to sexually oriented businesses.

While dressing like a clown doesn’t appear to be per se prohibited, there is certainly the risk of breaking other laws while dressed as a clown. In addition, dressing like a clown in public and creating unnecessary alarm or panic could be deemed as disorderly conduct.

Texas Penal Code, Chapter 42 lays out a list of behaviors that could constitute up to a Class B misdemeanor. Class B misdemeanors can carry a penalty of up to 6 months in jail and up to a $2,000 fine. Sec. 42.01 (a)(2) states that a person commits an offense [of disorderly conduct] if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. An offense of this nature is a Class C misdemeanor and carries the possibility of up to a $500.00 fine.

Can I use Deadly Force Against the Clown?

Let’s start with the simple answer of “NO”. While individuals may be suffering from coulrophobia (the fear of clowns), this condition does not give you a right to use deadly force – or any force for that matter – against an individual simply because he or she is standing in public dressed as a clown.

The more complex answer of “maybe” would have to do with the use of force for self-defense purposes. Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. Under this law, the actor must reasonably believe that the force is reasonably necessary to protect against the other’s use or attempted use of unlawful force. Simply observing a clown, with no weapon or threat to use a weapon, provides no grounds to use force – much less deadly force – against that clown.

In addition, the Penal Code does establish that force may be used to protect one’s own property. A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…” However, the use of deadly force to protect one’s own property is limited. “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement]. Tex. Penal Code Section 9.42.

Using force for self-defense purposes is a serious response to dangerous and threatening situations – but certainly not an appropriate response to being “creeped” out.

Bottom Line | Do Not Shoot the Clown (Yet)

Dressing up as a clown and causing fear amongst the public is a stupid (and perhaps even illegal) idea. Our attorneys would advise you strongly against it. You certainly place yourself in the position of having your behavior scrutinized by law enforcement for any potential illegal activity. And, if you’re simply afraid of clowns, do your defense attorney a favor and please do not shoot them.  BUT…If the clown lays a hand on you or chases you through a park, all bets are off. You may use force against the clown to avoid an assault.

Stop and Frisk Furr v. State 2016

Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

By | Reasonable Suspicion, Search & Seizure | No Comments

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Stop and Frisk Furr v. State 2016Furr v. State (Tex. Crim. App. 2016)

On September 21st the Criminal Court of Appeals decided Furr v. State. In Furr, the Court held that an anonymous tip was sufficiently corroborated to establish reasonable suspicion to stop and frisk Appellant Furr. To support the stop and frisk, the court noted that Appellant:

  • watched the officer as he drove by,
  • repeatedly looked at the officer as he walked away,
  • was nervous, anxious and sort of out of it,
  • appeared under the influence of drugs, and
  • did not initially respond as to whether he was armed.

Further, the Court stated it is not per se objectively reasonable for a police officer to execute a pat down of a suspect for weapons simply because they are accused of drug possession.

The Facts of Furr v. State

Corpus Christi Police Department received an anonymous tip that two men were doing drugs on a particular street corner, one dressed in all black and the other in a black shirt carrying a brown backpack. In response, an officer drove past the street corner. He observed two men that fit the description from the tip and noticed in his rearview mirror that the men were watching him as he drove by. The officer then approached the two men but one of the men, Furr, walked away into the nearby shelter, repeatedly looking over his shoulder at the officer. The officer described Furr’s actions as furtive, “like he was trying to get away.”

When another officer arrived, the officers made contact with Furr. Furr was described as nervous, anxious, evasive, and was sweating excessively. Furr did not respond when the officers initially asked if he had any weapons on him. Officers said he appeared “kind of out of it” and “like he was under the influence of a drug. As a result, for safety reasons, officers frisked Furr for weapons and found a glass crack pipe in Furr’s front pocket. When removing the pipe, the officer also found two syringes, and after arrest, two small balloons of heroin.

Furr was charged with possession of a controlled substance. He pled guilty, reserving his right to appeal after his motion to suppress was denied. Furr argued on Appeal that officers did not have reasonable suspicion to stop and frisk him and that the trial court erred by not granting the Motion to Suppress the search.

The Court of Appeals Affirmed the Trial Courts Decision

The court of appeals held that Furr’s nervousness coupled with the observation that he seemed to be under the influence of a drug sufficiently corroborated the tip to support the investigative detention and that Furr’s failure to initially respond about being armed coupled with the other circumstances justified the frisk.

The Criminal Court of Appeals Concluded that there Was Reasonable Suspicion to Detain and Frisk Furr.

1. The Analysis of the Detention

In order to detain a person, the police officer must have reasonable suspicion based on “specific articulable facts, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). Anything that happens or that is observed before the detention will be considered in determining whether the officer indeed had reasonable suspicion to detain Furr.

Furr argued that the anonymous tip alone was not enough.  The Court, however, explains that if there had only been the anonymous tip, it would not have established reasonable suspicion, but here there was more. The Court identifies several independent observations:

  • Furr and the other man were at the specified location and matched the informant’s description.
  • The area was a “high drug, high crime” area.
  • Furr and the other man watched the officer as he drove past
  • When the officer approached the two, Furr walked away “furtively.”
  • When the officers came upon Furr in the shelter he was sweaty, nervous, anxious, and appeared out of it as if he was under the influence of a drug.

Thus, the reasonable suspicion here was not solely based on the informant’s tip, but instead that tip was corroborated by independent observations made by the police officers. Looking at the totality of these circumstances, the Court held that the officers had reasonable suspicion to stop Furr and investigate the information from the anonymous tip that Furr and the other man were using and possessing a drug.

2. The Terry Frisk

The Court rejected the State’s request to adopt a rule that it is, “per se, objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs,” because reasonable suspicion to frisk a suspect cannot be established by accusations of drug possession alone.

The Court further rejects the State’s argument that the officer was objectively justified in patting Furr down for weapons because this was outside of a homeless shelter for two reasons: 1) Nothing in the record shows that the shelter was a homeless shelter; and 2) Even if it was a homeless shelter, the Court does not see a correlation between being armed and dangerous and being at a homeless shelter.

Even so, the Court ultimately agrees with the court of appeals that reasonable suspicion was established here because the anonymous tip was corroborated by all of the circumstances surrounding the officers’ interactions with Furr. Specifically, the Court noted the tip, personal observations by the officers and the high drug, high crime area would warrant a belief that the safety of officers and others was in danger.

DISSENT – Stop and Frisk Should Have Been Held Unlawful

Judge Meyers dissented from the majority and opined that the stop and frisk of Furr was unlawful and that the motion to suppress should have been granted. Judge Meyers concluded that neither Furr’s action of looking over his shoulder or the anonymous tip, alone or combined, were sufficient to establish reasonable suspicion. Thus, there was no need to analyze the legality of the frisk. Judge Meyers believes that the majority made its decision “not based on law but on the feeling that Furr should not get relief.”

Texas Statute of Limitations

Statute of Limitations in Texas | How Long Does the State Have to Bring Charges?

By | Criminal Defense | No Comments

How Long Does the State Have to Bring a Criminal Case Against Me?

Texas Statute of LimitationsTexas law sets out the statute of limitations, the period during which formal charges must be brought against the defendant for most offenses. These time periods range from two years to over twenty years, and for some offenses there is no limitation period at all. The applicable limitation period depends on the particular offense that is alleged.

The various statutes of limitations mean that the state must present an indictment or information within said time period or prosecution will be time barred. The presentation of an indictment occurs when the grand jury has made its decision and the indictment is received by the court. Tex. Code Crim. Proc. Ann. Art. 12.06. The presentation of an information occurs when it has been properly filed in court. Tex. Code Crim. Proc. Ann. Art. 12.07. The limitations period is tolled while the case is pending after an information is filed or indictment issued. Tolling means that the time will not be counted against the limitations period.

Generally, the time period is measured based on the date the offense was committed. When computing the time period, the day on which the offense was committed and the day on which the charge was presented are excluded. Tex. Code Crim. Proc. Ann. Art. 12.04. Thus, the clock starts running the day after the offense was committed and is paused when the indictment or information is presented. Additionally, any time the defendant was absent from the state is excluded when computing the time period. Tex. Code Crim. Proc. Ann. Art. 12.05(1).

What Are the Time Periods in the Texas Statutes of Limitations?

Texas law provides that for all misdemeanor offenses there is a standard period of limitations of two (2) years. Tex. Code Crim. Proc. Ann. arts. 12.02. Thus, for any given misdemeanor charge, the State must bring prosecution within two years from the commission of the crime.

There are several periods of limitations provided for the various felony offenses, as well as a catch all time period of three years for all other felonies not specifically provided for. Tex. Code Crim. Proc. Ann. art. 12.01(7). See the chart below for the time period provided for certain major felony offenses.

TEXAS PERIODS OF LIMITATIONS FOR FELONY OFFENSES

PERIOD OF LIMITATIONS FELONY OFFENSE
(A) Five Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(4).

  • Theft or Robbery,
  • Kidnapping or Burglary (except as provided in (E)),
  • Injury to Elderly or Disabled (unless 1st Degree),
  • Abandoning or Endangering Child, and
  • Insurance Fraud
(B) Seven Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(3).

  • Money Laundering
  • Credit Card or Debit Card Abuse
  • Medicaid Fraud
  • False statement to obtain property or credit; and
  • Fraudulent Use or Possession of Identifying Information
(C) Ten Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(2).

  • Theft of any estate by an executor, administrator, guardian, or trustee
  • Theft by a public servant of government property
  • Forgery or uttering, using, or passing of a forged instrument
  • Sexual assault (except as provided in (F)),
  • Injury to an elderly individual or disabled individual (if punishable as a first degree felony), and
  • Arson
(D) Ten Years from the Victim’s 18th Birthday

 

See Tex. Code Crim. Proc. Ann. art. 12.01(6).

  • Injury to a Child
(E) Twenty Years from the Victim’s 18th Birthday

 

See Tex. Code Crim. Proc. Ann. art. 12.01(5).

  • Sexual Performance by a Child younger than 17
  • Aggravated Kidnapping with intent to sexually abuse a victim younger than 17, and
  • Burglary of a Habitation with the intent to sexually abuse a victim younger than 17
(F) No Time Limitation

 

See Tex. Code Crim. Proc. Ann. art. 12.01(1).

  • Murder or Manslaughter
  • Leaving the Scene of an Accident which Resulted in Death
  • Indecency with a Child
  • Sexual Assault or Aggravated Sexual Assault of a Child
  • Continuous Sexual Abuse of a Child
  • Sexual Assault if DNA testing indicated that the perpetrator’s identity could not be readily determined
  • Sexual Assault if there is probable cause to believe that the defendant has committed the same or similar offense against 5 or more victims
(G) Three Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(7).

  • All other Felonies.

Periods of Limitations for Aggravated Offenses, Attempt, Conspiracy, and Solicitation

The limitation period for criminal attempt is the same as provided for the offense attempted. Tex. Code Crim. Proc. Ann. art. §12.03(a). Additionally, the limitation period for criminal conspiracy or organized crime is that of the most serious offense that is the subject of the conspiracy or organized crime. §12.03(b) Further, the limitation period provided for criminal solicitation is the same as the period of the felony solicited. §12.03(c). Finally, an aggravated offense has the same period of limitation as provided for the primary crime. §12.03(d)

In conclusion, these limitations are set out to protect defendants from having to face charges where evidence is stale and witnesses are unavailable due to the long period of time the State has waited to bring prosecution. The Texas Code of Criminal Procedure is very specific in how it has laid out the periods of limitations so that there will be no question as to the time period for a particular offense and how that time period should be computed.

*Note: The above provided chart is not all-inclusive but instead focuses on only some of the major felony offenses. An exhaustive list can be found in Section 12.01 of the Texas Code of Criminal Procedure.

Husband Wife Privilege Texas Rule 504

Can One Spouse be Forced to Testify Against the Other?

By | Criminal Defense, Jury Trial | No Comments

Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?

Husband Wife Privilege Texas Rule 504Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?

Yes. In Texas there are two “Husband-Wife” privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

What is Spousal Immunity? How does Spousal Immunity work in Texas?

Spousal immunity is the privilege that exists in a criminal trial for the defendant’s spouse not to be called as a witness in certain situations.  Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse’s marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse’s testimony.

Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).

Exceptions to Spousal Immunity in Texas

There are two exceptions to spousal immunity in Texas.

  • First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
  • Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.

What is the Texas Marital Communication Privilege?

Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse.  Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).

This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse’s ears only.

Exceptions to the Marital Communications Privilege in Texas

There are two exceptions to the confidential communications privilege.

  • First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
  • Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant’s spouse, any minor child, or a member of the defendant or defendant spouse’s household.

In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges