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Luke Williams

Car accident Police Report

What if I Didn’t Get a Police Report for My Car Wreck?

By | Car Wreck, Personal Injury

Do I still have a case if the police didn’t make a report on my car wreck?

Car accident Police ReportMany people involved in motor vehicle collisions may not have police or accident reports documenting the specifics of the wreck. Sometimes it could be because the wreck was not reported and the police were never called. Other times, the police may have been called but simply did not respond. Law enforcement agencies often lack the resources to respond to each and every car wreck that occurs in their jurisdiction. More and more police agencies are putting policies into place that do not require them to respond to what the agency deems a “minor” wreck. The problem is that sometimes a wreck that law enforcement deems “minor” may actually have major long-term consequences (and injuries) for the individuals involved.

What can I do if the police never made a report of my accident?

If you are involved in one of these types of wrecks, and there was no accident report filed with the police, you can still have a valid personal injury case. Regardless of the reason, you may find that you do have a legitimate case and still need to file a personal injury lawsuit to be fairly compensated for your injuries. Having a police report can be an advantage when filing a personal injury lawsuit, but even without one it is possible to file and win your case.

Other Ways to Investigate

Police reports are helpful because they provide the parties and the court with relevant facts about the accident based on the observations of unbiased law enforcement officers. But, police officers are not the only people who can provide evidence demonstrating that the other party was negligent. A private investigator can help too.

When necessary, our personal injury attorneys work with private investigators to collect evidence about cases, find and contact witnesses, and gather information to determine which party was at fault in an accident. You will not be required to pay for these services up front. The cost for these services will most likely be presented as an expense that will be deducted from the total sum of your award or settlement.

Other Sources of Information

In addition to an accident report as well as witness testimony, other documents and materials can also be gathered as evidence of your injuries and their cost. These include medical records, videos, photos and other relevant documents. Your attorney can help you obtain these records and reports during the investigation and discovery stage of your case. These documents can help to build up a solid evidentiary basis for your case that your attorney will use to negotiate a settlement or represent you in court.

Your Own Statement

You are most often your best witness. You were present when the wreck occurred and personally went through it. It is always in your best interest to first provide an account of what happened to your attorney directly. Communications between an attorney and client are confidential, so before speaking with anyone about your case you should consult with your attorney regarding what you should or should not disclose and to whom. It is best to retain one of our attorneys so that we can speak confidentially about your case and determine the best course of action to proceed.

Ultimately, it is important to put together an accurate and coherent account of what occurred. Being injured in an accident is almost always a very emotional experience. Your attorney can help you establish a timeline of the events that is logical and provides a clear picture of how the accident happened and the injuries that resulted from it. This can be very similar to the type of narrative that the police would provide if they had written a report.

If you were seriously injured in a motor vehicle collision, and there is no police report, don’t worry. You may still have a very valid case for which fair recovery for your injuries can be obtained. Our experienced motor vehicle accident lawyers can help you determine the best course of action in these situations.

UM UIM Claims Texas

UM/UIM Insurance: When the At-Fault Driver’s Insurance is Not Enough

By | Insurance, Personal Injury

UM UIM Claims TexasTexas law is clear that every driver must maintain financial responsibility (auto insurance). But, the truth of the matter is that there are thousands of drivers on Texas roads who are underinsured with a minimum policy or not insured at all. What this means is that if you are hit and injured in a car wreck by one of these uninsured or underinsured drivers, you may have to use your own insurance to pay for your medical bills, lost wages, lost ability to work and/or other damages.

What can you do to protect yourself if you are injured in an accident caused by an underinsured or uninsured driver?

We recommend that you carry a significant amount of uninsured motorist (UM) and underinsured motorist (UIM) protection insurance. These policies, which typically only cost you a few dollars per month, ensure that if you are injured by an underinsured or uninsured motorist you and your attorney will have a policy to pursue to properly compensate you for your injuries.

What are the minimum requirements of insurance in Texas and what else can you do to protect yourself?

Texas law requires that a driver have at least $30,000 of coverage for injuries per person, and a total of $60,000 per accident. Insurance companies also offer an option called personal injury protection (PIP). While some states require that drivers carry PIP, Texas does not. PIP is an additional option that provides coverage specifically for injuries sustained in a car wreck. Most people carry $2,500 in coverage under their PIP – this is the minimum coverage required to be “offered” in Texas when you purchase an auto insurance policy. PIP not only pays medical bills but, 80% of your lost income and reasonable household duties. You can purchase even higher limits of PIP through your insurance company and you should get as much PIP coverage as you can. Most insurance companies will sell you at least $10,000 in coverage under PIP, some even more.

Ultimately, if you are injured in a car wreck, your own PIP insurance would be the first policy to pay towards your damages before you can start to pursue the driver’s insurance who hit you.

Why the minimum coverage (and PIP) typically aren’t enough.

Often times, when you’re seriously injured, using your PIP and having the minimum amount of coverage to go after against the driver who hit you just isn’t enough. This is especially (and obviously) the case if the at-fault driver is uninsured. This is where your UIM/UM policy kicks in. If you don’t have UIM/UM coverage under your own policy, then you could be out of luck.

With UM and UIM insurance, claims that exceed your own PIP and the at-fault driver’s insurance will be covered up to the limits of your UM/UIM policy. Because of the vast amount of driver’s in Texas who are either underinsured or uninsured, in many cases UM/UIM policies are one of the only coverages available for your attorney to seek to compensate you for your injuries.

Do you need an attorney for UM/UIM cases?

Yes you do. First and foremost, you need an advocate to make sure you’re getting the most out of your claim against the at-fault driver. But if the at-fault driver is underinsured or uninsured and you have UM/UIM coverage, that doesn’t just mean that your own insurance company is going to automatically hand over the limits of your own UM/UIM policy.

When a driver seeks to be compensated out of their own UM/UIM coverage, they are often times still met with resistance by their own insurance company. The insurance company will still do what they can to pay you as little as possible (they’re a business and unfortunately, you’re often times still treated more like a number than an injured person). An attorney’s job is to break this mentality and advocate for you to be treated fairly and be taken seriously by these insurance companies – not just treated as another number in their computer programs.

What can you do if your own insurance company is not fairly compensating you under your UM/UIM policy?

The first step is to retain our firm to represent you. We’ll advocate for you and work to maximize your claim not only against the at-fault driver’s insurance company but with your insurance provider as well if you’re covered under a UM/UIM policy. Ultimately, if negotiations do not produce a fair offer from your insurance company, you may even bring suit to pursue a fair outcome against your UM/UIM policy.

To speak with an attorney about insurance policies that might be available in your case – including UM/UIM coverage – please contact our office for a free initial consultation.

Best Tarrant County Car Accident Attorney

Fireworks Laws Texas Keller Southlake

Fireworks Laws in Texas | Could a Sparkler Really Cost You $2,000?

By | Criminal Defense

Do Not Lose Your Liberty on Independence Day

Fireworks Laws Texas Keller SouthlakeIndependence Day is right around the corner. You will probably start seeing the notices spread across social media from local police departments, warning that setting off fireworks (including sparklers) is illegal inside of city limits. We know that you’re probably going to do it anyway, but we wanted to let you know what Texas law provides regarding fireworks on the 4th of July.

Texas Fireworks Law | Are Sparklers Illegal Inside of City Limits?

While state law in Texas permits possessing and using fireworks, it’s important to note that where and when a person can possess them is still highly regulated. There are State laws that limit the use and display of fireworks but use is predominantly regulated by way of city ordinances.

Specifically, under state law, a person may not:

  1. Explode or ignite fireworks within 600 feet of any church, a hospital other than a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization;
  2. Sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
  3. Explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
  4. Ignite or discharge fireworks in or from a motor vehicle;
  5. Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
  6. Conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
  7. Conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local fire prevention officer; or
  8. Sell, store, manufacture, distribute, or display fireworks except as provided by this chapter or rules adopted by the commissioner under this chapter.

Texas Occupations Code, Subchapter F, Sec. 2154.251

These violations are Class C Misdemeanors, which can be punishable by a fine up to $500.

Fireworks licensing violations are Class B Misdemeanors which can result in a jail term up to 180 days and a fine not to exceed $2,000.

Fireworks City Ordinances | Local Fireworks Rules in Fort Worth, Keller, and Southlake

In addition to State law, most cities in Texas regulate the use and display of fireworks by way of specific city ordinances. For example, Fort Worth, Texas has enacted an ordinance making the sale, discharge or possession of fireworks within the incorporated city limits a Class C misdemeanor punishable by up to a $2,000.00 fine. Similar ordinances exist in Keller and Southlake, and most other Texas cities.

Before your celebrations, it’s always best to review the above regulations under the Texas Occupations Code and check your local city ordinances online to ensure that you’re legally possessing, using and displaying fireworks.

COVID-19 State Orders Texas

What Happens if I Refuse to Obey the COVID-19 Orders?

By | Criminal Defense

Texas Legal Consequences During the Coronavirus Pandemic

COVID-19 State Orders TexasWith the declaration of a state of disaster in Texas by Governor Greg Abbott on March 13,2020 comes some new consequences that Texas citizens need to be aware of.

We previously posted a blog addressing enhancements that have gone into place for certain criminal offenses. But, there are also new laws activated as a result of state, local and interjurisdictional emergency management plans.

Broadly speaking, Texas Government Code (TGC) 418.173 establishes a penalty for citizens failing to comply with emergency management plans.

Specifically, TGC 418.173 states:

(a)  A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense.
(b)  The plan may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.

Most local Texas governments have already established emergency management plans. County Judges in Dallas and Austin, for example, have published their Orders regarding these plans on their local websites and are regularly amending them.

The Emergency Order for Tarrant County can be found here.

It’s important that citizens know that with the disaster declaration in effect, violation of these Orders can result in a person being arrested. For practical purposes, that means that if local government is limiting community gatherings and business closures, a violation of those Orders could result in an arrest.

Information coming from our local government is changing on almost a daily basis now. Check with your local jurisdiction for their emergency management plans and be aware of the consequences of violating those plans.

There are a number of special powers and provisions established with the declaration of a statewide emergency effecting many different areas of law. The full text of the extent of those can be found in Chapter 418 of the Texas Government Code.

Disaster Declaration Texas Criminal Law

Criminal Law Enhancements During a State of Disaster

By | Criminal Defense

Disaster Declaration Texas Criminal LawOn March 13, 2020, Governor Greg Abbott declared a state of disaster in Texas in response to the COVID-19 pandemic. For the purposes of criminal law in Texas, that disaster declaration triggered the provisions of Texas Penal Code (TPC) 12.50.

What are the Criminal Law Implications During a State of Disaster?

In general, TPC 12.50 states that for the offenses listed below, if committed during the declaration of a state of disaster, the punishment level for these offenses is increased to the next higher category for that offense. For example, if a Theft charge would normally be punished as a Class B misdemeanor (0 – 180 days in jail and up to $2,000 fine) then it would be increased to a Class A misdemeanor (0 – 365 days in jail and up to $4,000 fine) if it is committed during the time of the declared disaster.

Specifically, 12.50 applies to the following offenses:

  • Assault and Domestic Violence (TPC 22.01);
  • Arson (TPC 28.02);
  • Robbery (TPC 29.02);
  • Burglary (TPC 30.02);
  • Burglary of Coin-operated or Coin Collection Machines (TPC 30.03)
  • Burglary of Vehicles (TPC 30.04);
  • Criminal Trespass (TPC 30.05); and
  • Theft (TPC 31.03)

TPC 12.50 is limited by the following provisions:

For the offenses of Assault, Burglary of Coin-operated/Coin Collection Machines, Burglary of Vehicles, Criminal Trespass or Theft, if the offense committed would normally punished as a Class A misdemeanor, then during the emergency declaration the minimum term of confinement is increased from 0 to 180 days in a county jail.

For the offenses of Arson, Burglary, and Criminal Trespass, if the offense committed would normally be punished as a First Degree Felony, then there is no enhancement.

stealing presents Christmas theft package

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

By | Theft

stealing presents Christmas theft packageThroughout 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. Would-be porch pirates should certainly think through their intended capers as many houses are equipped with doorbell cameras these days that capture clear video of any movement at or near the doorway.

What Can Happen to Individuals Who Steal Packages?

Grinchy thieves 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.

Theft Of Mail In Texas – New Law in 2019

In 2019, the Texas legislature passed another law aimed at package theft. HB 37 makes it a crime to steal mail (including packages) from mailboxes or homes. The punishment range of this new law is linked to the amount of homes from which mail is taken. If a person takes packages from fewer than 10 homes, the crime is a Class A misdemeanor; 11-30 homes is a State Jail Felony; and 31+ homes is a 3rd Degree Felony. Of course, if the value of the package would make the offense a higher felony, then the state could also choose to file a case for the greater offense.

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.  Amazon has also begun testing out a service that allows delivery drivers to leave packages inside your home.

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!

Texas CBD Legal 2019

CBD Update: Texas Legislature Clarifies the CBD Issue

By | Drug Crimes

Gov. Greg Abbott has now signed House Bill 1325 into law, clarifying the legality of hemp-derived, low THC CBD products in Texas.

Texas CBD Legal 2019On June 10, 2019, Gov. Abbot signed HB 1325 which modified sections of the Texas Agriculture Code and sections of the Texas Health and Safety Code.

The first major modifications come by way of the Texas Agriculture Code. The code now defines and legalizes “hemp” and establishes a legal production plan for the regulation of hemp and hemp-based products.

The Definition of Hemp

“Hemp” is now defined in in Section 121.001 0f the Texas Agriculture code as

“the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”

This definition is essentially the previous definition of marijuana under the Health and Safety Code but now isolates plants that contain less than .3% THC as being legal “hemp”.

By providing a clear definition of “Hemp” including plants or products that contain .3% THC or less, the legislature has resolved the issue that previously existed making the possession of any amount of THC regardless of it’s origin a felony level offense in Texas.

The Texas Agriculture Code has also been amended to establish a legal production plan for the regulation and sale of hemp and hemp-based products. The Code now establishes a licensing process for businesses looking to grow or sale hemp products.

New Rules for Peace Officers

The amendments to the Code also now give powers and duties to Peace Officers who come into contact with hemp regard to determining whether a plant or substance is marijuana or hemp. Under Sec. 122.358 of the Texas Agriculture Code, a peace officer may now inspect and collect a reasonable sized sample of any material from the plant Cannabis sativa L. found in a vehicle to determine the THC concentration of that material. Unless the officer has probable cause to believe the plant material is marijuana, the peace officer may not seize the plant material or arrest the person transporting the plant material. This would include hemp-derived CBD oil containing .3% THC.

In regards to the Health and Safety Code, HB 1325 has amended the code to exclude hemp (and more importantly the THC in hemp) as defined by Section 121.001 from the definition of a Controlled Substance. The bill also now specifically excludes hemp as defined by Section 121.001 (and the THC in hemp) from the definition of “Marijuana” in Section 481.002 (26) of the Health and Safety Code.

House bill 1325 has significantly clarified the previously confusing state of the law concerning CBD products in Texas. We advise those that are selling, buying or possessing CBD products to read the text of the bill for more details.

https://legiscan.com/TX/text/HB1325/id/2026154/Texas-2019-HB1325-Enrolled.html

CBD Oil Legal Texas

Is CBD Oil Legal in Texas? Perhaps, But it Must Fit These Qualifications

By | Drug Crimes

What is CBD Oil?

CBD Oil Legal TexasCBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product’s ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA’s authority to classify CBD Oil as within their administrative purview.2

For CBD Oil to be considered legal in the Federal system under the DEA’s guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”3 The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.4 Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 – 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

  • Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
  • Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
  • Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for  zero THC CBD oil, the Tarrant County DA’s office is still filing these cases if a person is arrested.

Sources:

  1. H.R.2642 – 113th Congress (2013-2014): Agricultural Act of 2014.
  2. Hemp Industries Association v. USDEA, No. 17-70162
  3. SB339  Texas Compassionate Use Program
  4. Conant v. McCaffrey  WL 1281174
Judge Writing On Paper At Desk

Unanimity Instruction Required and Not Given, But No harm, Says CCA

By | Jury Trial

Trial Court Failed to Give Unanimity Instruction to the Jury

The Court of Criminal Appeals recently handed down an opinion regarding a unanimity jury instruction in an aggravated sexual assault case. The issue before the Court was whether the trial court erred when it failed to instruct the jury that it must be unanimous in deciding how the sexual contact occurred when there were multiple allegations. The Court of Criminal Appeals found the jury instruction to be erroneous but concluded no harm occurred.

French v. State, (Court of Criminal Appeals 2018).

The Facts—The Defendant Was Convicted for Aggravated Sexual Assault of a Child

The defendant was originally indicted on a single count of aggravated sexual assault of a child. The indictment alleged that the defendant caused the penetration of the child’s anus by the defendant’s sexual organ. Before trial though, the indictment was amended to add “contact with” and “penetration of” the sexual organ of the child by the defendant’s sexual organ. As a result, the indictment presented four options for a conviction: (1) the defendant contacted the child’s anus with his sexual organ; (2) the defendant penetrated the child’s anus with his sexual organ; (3) the defendant contacted the child’s sexual organ with his sexual organ; and/or (4) the defendant penetrated the child’s sexual organ with his sexual organ.

At trial, the jury instructions authorized the jury to convict the defendant on any one of the four theories. In addition, the trial court explicitly instructed the jury that they need not all agree on the manner in which the sexual assault was committed. This instruction essentially authorized the jury to convict the defendant without agreeing as to which orifice he had “contacted or penetrated”—even though there was little to no evidence presented that defendant ever contacted or penetrated the child’s sexual organ. This prompted the defendant to object and ask the court for a unanimity instruction regarding the manner in which the sexual assault was committed. However, the court overruled the objection and the defendant was subsequently convicted.

The Court of Appeals Reversed the Defendant’s Conviction—Holding the Trial Court Erred in Failing to Submit a Proper Instruction Which Caused “Some Harm”

On appeal, the defendant argued that the jury charge failed to follow the juror unanimity requirement because it did not require the jury to agree as to which orifice he contacted and/or penetrated. For double jeopardy purposes, he argued the theories were considered distinct and separate offenses, each of which demanded juror unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred by failing to submit proper instructions. In light of this error, the court of appeals determined that the erroneous jury charge was sufficient to invoke the “some harm” standard under Almanza, which required a reversal.

The Court of Criminal Appeals Reversed the Court of Appeals’ Judgment—Finding No Actual Harm Occurred

On petition for discretionary review, the State did not contest the erroneous jury charge. Rather, it argued that any error in the jury charge as to the unanimity requirement did not result in harm to the defendant. The Court of Criminal Appeals agreed.

In analyzing whether there was “some harm,” the Court of Criminal Appeals considered the trial court’s error with respect to the four factors set out in Almanza: “(1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole.”
The Court of Criminal Appeals noted that in concluding that “some harm” occurred the court of appeals only relied upon the second Almanza factor—the state of the evidence. That court identified there was “some evidence in the record” for the jury to potentially conclude that the defendant penetrated both the child’s anus and sexual organ with his own sexual organ. And, since there was “some evidence” it believed that the jury could have regarded itself as authorized to convict different ways without reaching any agreement on a specific theory beyond a reasonable doubt.

However, even considering the above reasoning, the Court of Criminal Appeals determined there was no harm suffered when taking into consideration all four of the Almanza factors. The Court explained that “the risk that a rational juror would have convicted the defendant on the basis that he contacted and/or penetrated the child’s sexual organ with his own—and not also on the basis that he contacted and/or penetrated the child’s anus—is so ‘highly unlikely’ as to be ‘almost infinitesimal.’” Not only was there overwhelming evidence at trial that suggested anal contact and penetration occurred, there was no encouragement for a specific finding, and the defendant’s only defense was that it never happened. All of this supports the Court’s conclusion that the harm was merely hypothetical and not actual. As such, the Court reversed and remanded the case even in light of the error.

Pretext Phone Call Texas Sexual Assault

Pretext Phone Calls in Sexual Assault Investigations

By | Sex Crimes

Pretext Phone Call Texas Sexual AssaultDid 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 investigations, especially where the victim knows the suspect, investigators often use recorded phone calls between the suspect and the complaining witness 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.