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Open Pleas & Pre-Sentence Investigations in Texas Criminal Cases

May08
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PSI graphic with text "WHAT IS A PRE-SENTENCE INVESTIGATION?" and gavel, relevant to Texas criminal law and sentencing processes.

What is a Pre-Sentence Investigation (PSI) in a Texas Criminal Case?

ByCriminal Defense

Making an “Open Plea” in a Criminal Case

PSI graphic with text "WHAT IS A PRE-SENTENCE INVESTIGATION?" and HLAW logo, relevant to Texas criminal defense and pre-sentence investigation process.*This article relates to State cases only. It does not apply to Federal cases.

In Texas, when a defendant pleads guilty to a criminal offense, the sentencing is most often agreed upon by both the State Prosecutor and defendant prior to the plea. But, there are situations that arise wherein a defendant wishes to enter a plea of guilty, but does not agree to accept the sentencing recommendation that is being made by the State. The defendant may request that the judge assess an appropriate sentence, believing that the judge might be more fair-minded than the DA in this particular case. This situation is referred to as an “Open Plea.” In an open plea, after a defendant pleads guilty, both parties may put evidence on for the judge in order for the court to determine an appropriate sentence.

Pre-Sentence Investigation (PSI) as Part of an Open Plea

In addition to witness testimony, prior to sentencing a defendant, Texas Law (Texas Code of Criminal Procedure Art. 42A.252) requires a community supervision officer to prepare and submit a written report to the court. The report should include:

  • the circumstances of the offense with which the defendant is charged;
  • the amount of restitution necessary to adequately compensate victims of the offense;
  • the criminal and social history of the offender; and
  • any other information relating to the offender or the offense requested by the judge.”

The probation officer gathers this information during a pre-sentence investigation or PSI.

The Law Regarding PSIs in Texas | When is a PSI Required?

The law requires a pre-sentence investigation in every case, UNLESS:

In a misdemeanor case:

  1. The defendant requests that a report not be made and the judge agrees;
  2. The judge finds that there is sufficient evidence in the record to permit sentencing without the report; and
  3. The judge explains this finding on the record.

In a felony case:

  1. Punishment is to be assessed by a jury;
  2. The defendant is convicted of or enters a plea of guilty to capital murder;
  3. The only available punishment is imprisonment; or
  4. The judge is informed that a plea bargain exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow that agreement.

Unless one of these scenarios are present, the court is required to conduct a pre-sentence investigation. For agreed pleas to probation or deferred adjudication, the practice by the Tarrant County courts is that pre-sentence investigation is not often conducted, even though the law would seem to dictate otherwise.

The Mechanics of a Pre-Sentence Investigation

The PSI is an interview conducted by a specialized probation officer who – along with a defendant’s attorney – gathers as much information as possible to aid in a Judge’s decision on punishment. The officer gathers the police agency’s version of the facts and the defendant’s version of the facts regarding the underlying offense. The officer will also contact the victims named in the case to obtain a victim impact statement. The probation officer also does an extensive search of the defendant’s prior criminal record as well as his or her family, financial, and education history. The officer can also include other items in the PSI such as additional physical and mental health history.

At the pre-sentence investigation interview, the attorney representing the defendant can also submit other extraneous materials to be included in the officer’s report to the court. These items can include character reference letters, additional psychological evaluations that have been conducted prior to the investigation, and additional statements by the defendant related to his or her version of the case. It is prudent for the defense attorney to contact all of the people that have submitted character letters that ensure that their letter is an accurate reflection of their feelings regarding the defendant. Many times, the probation officer, and/or the prosecutor will also reach out to these folks, so it is best to confirm their character statements at the outset.

At the conclusion of the PSI, the officer in charge prepares a written report which includes his or her assessment of the defendant’s risk to re-offend, positive and negative factors to consider, and a supervision plan should the Court choose to place the defendant on probation. For cases involving restitution, the PSI will also include a restitution recommendation.

Taking Responsibility in an Open Plea

Defendants entering an open plea to the court waive their right to a jury trial. So, when conducting the pre-sentence investigation, the probation officer will confirm that the defendant is taking responsibility for his or her crime. This is an important part of the process. If the defendant has entered a plea of guilty to the crime in court but then denies the offense at the PSI, the officer will stop the investigation and return the case to court. One of the primary advantages, from a strategic standpoint, of entering an open plea is to communicate to the court that the defendant is taking on full responsibility for the crime. This is done in hopes that the court will take that into consideration when determining an appropriate sentence. It is this attitude of acceptance that typically garners the best results in an open plea. This is sometimes referred to in layman’s terms as throwing oneself on the “mercy of the court.”

Getting the Most Out of the PSI

Defense attorneys whose clients have opted for an open plea and a pre-sentence investigation can help their cause by supplementing the officer with as much positive information as possible. As mentioned above, it’s important for an attorney to gather additional character letters and to explore outside mental and psychological evaluations that might be conducted to be included in the report to the court. Additionally, if the defendant has already been serving community service, taking rehabilitative classes, or saving toward restitution, you should explain that and provide records to back it up.

Once the PSI is completed and submitted to the judge, the court will set the case for a sentencing hearing. At the sentencing hearing, testimony from both the defendant and character witnesses will be taken into consideration. But, it’s the pre-sentence investigation report that will typically be the most important item that the court reviews.

Not all cases involve a pre-sentence investigation. But, when a PSI is conducted, it can provide the most thorough review of a case and defendant’s background aiding in a court to assess a fair and just punishment.

Jan02
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Drones with text overlay "Drones Federal Registration Laws and Penalties," featuring a person in the background, related to federal drone registration and legal guidelines by Howard Lotspeich Alexander & Williams, PLLC.

Rules for Drones | Drone Registration and Penalties for Failure

ByCriminal Defense

Drones with text overlay "Drones Federal Registration Laws and Penalties" and HLAW logo, emphasizing drone registration requirements and legal implications.Drones or Quadcopters were a popular Christmas gift this year. While many new drone owners are probably preoccupied with learning to fly without getting the propellers stuck in trees or crashing them over their neighbor’s fence, they need to take a moment to learn about the federal registration rules for unmanned aircraft.

*Federal drone registration had been struck down by an appeals court in May of 2017, but the National Defense Authorization Act that was passed in December 2017 reinstated drone registration.

Do I Have to Register My Drone?

Maybe. Any unmanned aircraft system (“drone”) that weighs more than .55 pounds must be registered with the FAA. Depending on the size of the drone, it can be registered under:

  • Part 107, Small UAS Rule,
  • Section 336, the Special Rule for Model Aircraft, or
  • 14 CFR Part 47, the Traditional Aircraft Registration

Registration Under The Special Rule for Model Aircraft

Most people register their drone under this provision. The Special Rule for Model Aircraft allows for registration of a drone between 0.55 lbs and 55 lbs for recreational use only. Under this registration:

  • A person is allowed to fly their drone within their line of sight,
  • A person is required to follow the community-based and nationwide guidelines,
  • A person is not allowed to fly their drone over an airport or to interfere with emergency response units, and
  • A person must notify an airport when they are flying within five miles of an airport.

In order to register under the Special Rule for Model Aircraft, you must:

  • Register as a “modeler” with the FAA,
  • Be at least 13 years’ old,
  • Be a legal United States citizen or legal permanent resident, and
  • Label your drone with the registration number in case it is lost or stolen.

This registration, which can be completed online costs $5 and lasts for 3 years.

Registering 0.55–55 lb Drones Under the FAA Small UAS Rule

The Small UAS Rule allows for registration of a drone between 0.55lbs and 55lbs for recreational and commercial use. Registration is REQUIRED by the FAA. Under the Small UAs Rule a person may:

  • Fly their drone at or below 400 feet (Class “G” airspace)
  • Fly during daylight or civil twilight
  • Fly at or below 100 miles per hour.

With a drone registered under Part 107, the pilot:

  • Must yield to manned aircraft
  • Cannot fly directly over people,
  • Cannot fly from a moving vehicle unless you are in a sparsely populated area.

In order to obtain your registration under the Small UAs Rule, you must:

  • Be at least 16 years old,
  • Have a valid credit card, email address, and physical/mailing address,
  • Pass an aeronautical knowledge test at an FAA-approved testing center,
  • Undergo a Transportation Safety Administration security screening, and
  • Denote the make and model of your aircraft when applying for registration.

The Small UAS Rule registration, which can be completed online costs $5 and lasts for 3 years.

Traditional Aircraft Registration for Drones Greater Than 55 Lbs

Traditional Aircraft Registration must be completed for any unmanned aircraft weighing over 55 pounds. The paperwork for drones greater than 55 pounds can be found on the FAA website and must be turned in via regular mail. Drones over 55 lbs will require an N-number that you have to submit to the FAA. The FAA website lays out the necessary information for an application.

This registration costs $5 and lasts for 3 years.

What is the Penalty for Flying a Drone Without Registering it?

Failure to register an unmanned aircraft can result in regulatory penalties up to $27,500 and criminal penalties up to $250,000 and/or imprisonment for up to 3 years. Penalties are determined on a case by case basis and will vary based on the judge.

The FAA provides on its website:

“There is no one-size-fits-all enforcement action for violations. All aspects of a violation will be considered, along with mitigating and aggravating circumstances surrounding the violation. In general, the FAA will attempt to educate operators who fail to comply with registration requirements. However, fines will remain an option when egregious circumstances are present.”

Do you have to register your drone if you only fly over your own property?

Even if flying over your own property, the FAA still requires registration of your drone. The penalties for failure to register an unmanned aircraft will apply even if the drone does not leave your property.

What Other Drone Rules Should I Be Aware of?

Every registration allows for different flight regulations, so pay close attention to what you register for and what that particular registration allows you to do. The FAA has developed an app called “B4UFLY”which gives you important information about your location and the flight restrictions in that area. This app is recommended by the FAA to help avoid violations of the registration limitations. For any additional questions/concerns, visit the FAA website.

Apr06
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Locked file folder with chain and padlock, text overlay stating "Defense attorneys may not provide discovery to clients under 39.14" and "In Re Powell (CCA, 2017)", relevant to legal insights on the Michael Morton Act and attorney-client discovery obligations.

Court Rules on Discovery to Clients under the Michael Morton Act (39.14)

ByCriminal Defense

May a Court Order that an Attorney Can Provide Copies of Discovery to a Client Pursuant to the Michael Morton Act?

Defense attorneys may not provide discovery to clients under the Michael Morton Act 39.14, legal document secured with a chain and lock, In re Powell (CCA, 2017), Howard Lotspeich Alexander & Williams, PLLC logo.The Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus in regard to a discovery dispute arising out of Article 39.14 of the Texas Code of Criminal Procedure —otherwise known as the Michael Morton Act. The central issue facing the Court was whether the relator (a party who has standing and on whose behalf a writ of mandamus is petitioned for by the state as plaintiff) satisfied the criteria to justify mandamus relief.

See the full opinion in In re Powell v. Hocker (NO. WR-85,177-01)

The Facts—Trial Judge Granted Defendant’s Motion to Release Discovery.

Ellen Wilson, the real party of interest, was charged with misdemeanor DWI in the County Court at Law in Lubbock, Texas. Wilson’s attorney obtained discovery pursuant to Article 39.14 and filed a motion to “release” Wilson from the prohibition contained in subsection (f) of the statute. Subsection (f) of Article 39.14 permits a defense attorney to “allow a defendant . . . to view the [discovery] information provided under this article,” but the defense attorney “may not allow” the defendant “to have copies of the information provided[.]”

In the brief filed in support of the motion, Wilson’s attorney prayed that the County Court at Law would “permit defense counsel to give her a properly redacted copy of the requested items of the State’s evidence.” The brief did not maintain that Wilson had been unable to “view” the discovery in the attorney’s possession, as the statute expressly permits. Rather, it asserted that it was important for Wilson to be able to obtain her own copies in order to effectively help counsel prepare her defense. The trial judge granted Wilson’s motion, but stayed the effect of his ruling pending the State’s application for writ of mandamus.

The Court of Criminal Appeals Conditionally Granted Mandamus Relief—Directing the County Court at law to Rescind its Order Permitting Defense Counsel to Provide Defendant a Copy of the Discovery Materials that were Provided by the State Pursuant to Article 39.14.

In order for a court to determine whether mandamus relief is appropriate, the relator must establish two criteria. State ex rel. Young v. Court of Appeals for the Sixth Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). The relator must demonstrate that he has no adequate remedy at law to rectify the alleged harm. Id. Additionally, the relator must have a clear right to the relief sought. Id. In other words, the relator must show that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. Id.

The Court determined that the State had no right to appeal Respondent’s order, which permitted trial counsel to provide the real party of interest with a copy of the discovery materials. More notably, Respondent did not seriously contest this issue. As such, the Court held the first criteria to be satisfied for mandamus relief.

Next, the Court determined the act was ministerial in nature. An act may be deemed “ministerial” when “the facts are undisputed and, given those undisputed facts, the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment[,]”—even if a judicial decision is involved. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994) (citations omitted). Furthermore, the Court determined this rule extends to cases of first impression.

The Court found Article 39.14 to be clear, unambiguous, and indisputable. Subsection (f) of the statute expressly and unequivocally prohibits the attorney, or her agent, to “allow” the defendant “to have copies of the information provided[.]” Respondent argued that Subsection (f) only speaks to whether the defendant’s attorney may supply him with copies of the discovery materials; it does not prohibit a trial court itself from providing copies. The Court rejected this argument because not doing so would circumvent the unqualified prohibition in subsection (f).

Next, Respondent argued that subsection (e) contemplates scenarios when a trial court may order disclosure of such materials. Subsection (e) expressly prohibits “the defendant” from personally disclosing discovery material to a third party. Respondent argued that this prohibition seems to assume that the defendant would have copies of those materials in the first place to disclose. The Court rejected this argument explaining that a defendant could “disclose” the substance of discovery materials to a third party by memory, having been allowed to “view” them pursuant to Subsection (f).

Rejecting all of Respondent’s arguments, the Court determined that the trial court lacked authority to enter an order that effectively abrogated Article 39.14. As such, the Court conditionally granted mandamus relief directing the County Court at Law to rescind its order.

This opinion solidifies what we already knew about Article 39.14 and have been telling clients all along – defense attorneys MAY NOT provide discovery materials to our clients.  And now, not even if the trial court orders it.

Mar13
Love3
Illustration of a police officer arresting a person beside a car, with the text "MAY I RESIST AN UNLAWFUL ARREST?" prominently displayed, related to legal discussions on resisting unlawful arrests in Texas.

May a Person Resist an Unlawful Arrest in Texas?

ByCriminal Defense

Resisting Arrest: How is it defined under Texas law?

Person being arrested by a police officer near a car, with the text "MAY I RESIST AN UNLAWFUL ARREST?" prominently displayed, relevant to Texas law on resisting arrest and legal defense insights from Howard Lotspeich Alexander & Williams, PLLC.In general, resisting arrest occurs when a person attempts to interfere with a peace officer’s duties. Section 38.03 of the Texas Penal Code defines resisting arrest as: a person who intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from:

  • Effectuating an arrest;
  • Carrying out a search; or
  • Transporting a person accused of a crime.

Resisting arrest requires the person to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. To be guilty of resisting arrest, the force need not only be directed at or toward the officer but is also met with any force exerted in opposition to, but away from the officer, such as a simple pulling away. Thus, even small uses of force can give rise to a charge of resisting arrest. However, non-threatening statements of disagreement with the officer’s actions usually are not enough to qualify as resisting arrest.

Some examples of resisting arrest include:

  • Preventing a cop from handcuffing you;
  • Struggling against an officer who is trying to arrest you; and
  • Engaging in violent action against the officer, like punching, kicking or inflicting harm with a weapon

Can You Resist an Unlawful Arrest in Texas?

One of the most important cases on this point is Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

What Ford provides, in short, is that you may not resist an arrest—whether lawful or unlawful. Historically, American citizens were legally entitled to use reasonable force to resist an unlawful arrest. Several states have now eliminated – either by statute or by judicial decision – the common law right to resist an unlawful arrest. Section 38.03 of the Texas Penal Code eliminated this right. Furthermore, subsection (b) of Section 38.03 specifically statesit is no defense to prosecution that the arrest or search was unlawful.

In Ford, the Court held “the elimination of the common law right to resist arrest reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned.” The Court reasoned that the line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. Furthermore, the Court has concluded that by limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested, and thus, there is not a violation of the person’s constitutional rights.

Potential Consequences

Regardless of whether a person is guilty of the underlying charge that prompted the attempted apprehension, resisting arrest is a serious charge in Texas (many time more serious than the underlying offense). A person can face a significant fine and jail time.

Typically, resisting arrest, search, or transportation is prosecuted as a Class A Misdemeanor. An individual convicted of a Class A Misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000.

However, the charge may be enhanced to a felony of the 3rd degree if you use a deadly weapon, such as a gun or a knife, to resist the arrest or search. An individual convicted of a felony of the 3rd degree may be sentenced to 2-10 years in the Texas Department of Corrections and a fine up to $10,000.

Our advice is to comply with the officer’s demands calmly and politely and let us work out the legality of the arrest later.

Jan19
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Howard Lotspeich Alexander & Williams, PLLC renovation of historic Atelier Building in downtown Fort Worth, showcasing architectural features and firm branding.

BHW Completes Full Renovation of Fort Worth’s Historic Atelier Building

ByCriminal Defense

Howard Lotspeich Alexander & Williams, PLLC renovation of historic Atelier Building in downtown Fort Worth, showcasing architectural details and legacy.Barnett Howard & Williams PLLC recently completed a full renovation of the historic Atelier Building (1905) in downtown Fort Worth. The Atelier Building is one of the oldest buildings in downtown Fort Worth, Texas that stills stands today. Built in 1905, the Atelier Building housed several different businesses over its 112-year history, including architects, banks, and a restaurant at one time. Located on 8th street between Houston and Throckmorton, the Atelier Building is marked by its dual terra-cotta fireplaces and marble facade.

The Atelier Building was last renovated in 1980 when architect Cameron Alread purchased the building. The building housed Mr. Alread’s architect firm for 36 years, until he sold the building to the law firm of Barnett Howard & Williams PLLC. Over the last six months, the law firm completely renovated the building from floor to ceiling. “One of our goals in this renovation was to bring out the history of the building,” said owner Luke Williams. If you take a look inside the building you will see exactly what he means. Plaster walls were removed to expose the original brick on the walls – bricks that have been around longer than most building in downtown. The foyer is graced by an enlarged photograph that was taken outside the building sometime during the 1930’s, back when 8th street was a brick road.

Office manager, Sue Holdridge has noticed a warm reception from the people of downtown. “Folks on the sidewalk continue to stop by and tell us how much they have enjoyed watching the transformation of the building and how much character it brings to this block of downtown.”

Barnett Howard & Williams PLLC moved its practice to Fort Worth in 2013, and maintained an office in Sundance Square until December 2016, when the Atelier Building renovation was complete. The firm gives all the credit for the renovation to Eric Hill at Hill Design & Build in Keller. He was the primary designer and architect for the project.

Nov25
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Gavel representing juvenile and adult criminal trials with text highlighting key differences in the legal systems.

Key Differences Between Juvenile and Adult Criminal Trials in Texas

ByCriminal Defense, Juvenile

Juvenile and adult criminal trials comparison graphic highlighting key differences, featuring a gavel and text labels.The juvenile justice system is a hybrid system. Juvenile proceedings are technically civil in nature, but they incorporate many elements from the criminal system. The reason for this separate system is to teach children that they will be held responsible for their actions without labeling them as criminals. The differences between adult and juvenile trials is a direct result of this difference in systems.

Terminology

One of the most noticeable distinctions between adult and juvenile trials is in terminology. Juveniles accused of crimes are called respondents, not defendants. Juries do not decide whether a respondent is guilty. Instead, they decide whether it is true or not true that he engaged in delinquent conduct.

Participants

In Tarrant County, the participants that you will see sitting in the courtroom during a juvenile trial are not the same as in an adult case. In addition to the judge, prosecutor, defense attorney, juvenile, court reporter, and jury, there are a couple other participants in juvenile cases. A parent or guardian of the respondent is required to be present during all proceedings. The Tarrant County juvenile judge also requires an intake probation officer to be present anytime the juvenile is in court.

Procedures

For the most part, the procedures in an adult trial and a juvenile trial in Tarrant County are similar. The same rules of evidence apply. A juvenile respondent has the same rights during a trial as an adult defendant has. The trials in the two systems follow the same general order, as well.

There are a few significant differences, however. First, and probably most important, is the contrast in who makes punishment decisions in the trials. In adult cases, a defendant can choose whether a judge or jury determines punishment. However, in juvenile cases, a respondent only has this choice in determinate sentence cases. In all other cases, a judge will determine the punishment, if any.

Another difference is the judge’s charge to the jury. The jury charge in a juvenile case is a civil charge with criminal language included in it. It is typically longer than a standard criminal charge in an adult case. The jury’s verdict form is also a bit different. In adult cases, the verdict form asks the jury to write guilty or not guilty. In juvenile trials, as mentioned earlier, the jury determines true or not true that the respondent engaged in delinquent conduct.

Disposition/Punishment Phase

In adult criminal trials, if a defendant is found guilty, the case moves into the punishment phase. In juvenile cases, that next phase is called the dispositional hearing. This is another area in which a juvenile trial differs from adult trials in Tarrant County.

If the jury is assessing punishment in an adult case, it generally happens almost immediately after a verdict of guilty is returned. If the defendant chooses the judge to assess punishment, the hearing is usually scheduled for a later date.

In the juvenile justice system, most of the time, the respondent does not get to choose who determines disposition. The judge will make the vast majority of these disposition decisions. This means that the dispositional hearing will usually be held a few weeks after the trial. Unlike in adult cases, a social history report on the respondent must be prepared by the intake probation officer prior to the dispositional hearing taking place. This report will be considered by the judge in assessing the appropriate disposition.

Practical Differences

The last big discrepancy between adult and juvenile cases has to do with the practical effect that these cases have on the person accused. The juvenile system emphasizes rehabilitation instead of punishment. Therefore, juvenile dispositions do not have the same long-term ramifications that adult punishments have. Typically, they are limited in length due to the age limits imposed by the system. In Tarrant County, the juvenile judge will consider probation in each case in which it is appropriate to consider.

There are a lot of differences between adult and juvenile trials. The main reason for this is because these trials are part of two separate and distinct systems. The juvenile system is a hybrid, combining parts of the civil and criminal systems into one. While there are many similarities between the two, this article highlights the main distinctions between the two.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings.

Oct07
Love1
Historic mansion with green roof and white facade, surrounded by trees and flowers, overlaid with text stating "Buying Prosecution" and details about the Hill v. State (2016) case regarding prosecutorial influence.

Dallas Oil Family’s Dismissal for Vindictive Prosecution Upheld on Appeal

ByCriminal Defense, White Collar

How Far Does the Trial Courts Discretion Go in Determining Whether to Hold a Pretrial Evidentiary Hearing?

Hill Mansion with text overlay about prosecution case, related to Dallas oil family and legal implications in Hill v. State (2016).On September 21st the Texas Court of Criminal Appeals issued a decision on the oil tycoon heir Albert Hill III’s criminal appeal. The question the Court faced was whether it was in the trial court’s discretion to conduct a pretrial evidentiary hearing on Hill’s motions to quash and dismiss based on prosecutorial vindictiveness. The Court determined that it was within the trial court’s discretion to conduct such a pretrial evidentiary hearing and that discretion was not limited by the defendant meeting “a certain threshold evidentiary requirement.”

Court Opinion: State of Texas v. Albert Hill (Tex. Crim. App. 2016)

The Facts | Trial Court Finds Dallas DA’s Actions Improper

Appellant Hill is the great-grandson of legendary Dallas oil billionaire H.L. Hunt and the events surrounding the indictment dealt with a multi-million dollar trust litigation between Hill and his father. Hill and his wife Erin were indicted in 2011 for making false and misleading statements in order to obtain a $500,000 mortgage from Omni American Bank. The indictment came shortly after Hill won in the trust litigation against his father. Prior to the indictment (but after Albert Hill’s victory in the trust litigation) Hill’s father’s attorney, Michael Lynn delivered a memo to the Dallas County District Attorney’s Office which alleged various offenses committed by Hill and his wife. Hill challenged these charges by filing a motion to quash the indictment and a motion to dismiss. Hill argued that the District Attorney, Craig Watkins, was under the influence of his disgruntled father as well as Lisa Blue Baron, one of Hill’s attorneys in the trust litigation case that had just filed a lawsuit against Hill seeking several million dollars in legal fees.

Some items of interest that the court noted were:

  • Lisa Blue Baron exchanged several phone calls and text messages with Watkins leading up to the indictment;
  • Michael Lynn’s law partner donated $48,500 to Watkins’ campaign prior to the indictment;
  • Lisa Blue Baron made a $100,000 donation to SMU LAW in Watkins’ honor after the indictment;
  • Lisa Blue Baron also held a fundraising event for Watkins’ campaign at her house and made a $5,000 donation to the campaign.

The trial court held an evidentiary hearing on Hill’s motions and granted both the motion to quash and the motion to dismiss.

The Court of Appeals Reversed the Trial Court’s Decision

The Fifth Court of Appeals reversed the trial court’s dismissals holding that the trial court “erred in conducting a hearing on Hill’s motion to dismiss.” The State argued that the trial court should not have held a pretrial evidentiary hearing because Hill failed to prove, with evidence, a prima facie case of prosecutorial misconduct and vindictiveness. The Court of Appeals stated that before a pretrial evidentiary can be held for a defendant claiming a violation of his constitutional rights, the defendant must “present facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.” The Court of Appeals found that Hill did not sufficiently meet this standard.

The Court of Criminal Appeals Disagrees with the Court of Appeals, holds that Trial Courts Have Sound Discretion to Conduct a Pretrial Evidentiary Hearing

1. Article 28.01 – The CCA points to Article 28.01 in determining that the trial court had the discretion to hold a pretrial hearing on Hill’s motions to quash and suppress. Article 28.01 §1 provides that a trial court “may set any criminal case for a pre-trial hearing” and that some of things that the pre-trial hearing shall be to determine is the “pleadings of the defendant,’ ‘exceptions to the form or substance of the indictment,’ or discovery.’” Article 28.01 §1(1), (2), (4), (8). Additionally, while Article 28.01 does not expressly provide for an evidentiary hearing on a motion to dismiss like it does for a motion to suppress, the Court determined that it would be a misapplication of the rules of statutory construction to decide that oral testimony cannot be used in a pretrial hearing to resolve any other issue raised.

2. Case Law – The Court supported its Article 28.01 decision with the Court’s decision in Neal v. State which held that a defendant is required to “preserve a complaint of vindictive prosecution by filing a pretrial motion to quash and dismiss.” 150 S.W.3d 169. With that decision in mind the Court said “it would make no sense to limit the trial court’s discretion to hold an evidentiary hearing on such motion.”

The State pointed to federal case law that provided defendant must make a prima facie case that raised a reasonable doubt. However, these cases dealt with the issue of whether the trial court erred by denying a pretrial hearing. Thus, the Court stated that this case law is not on point in Hill’s case and thus are not controlling on this issue, and do not persuade the Court to hold otherwise.

Decision of the Criminal Court of Appeals | The Trial Court’s Discretion is Not Limited

The CCA determined that Article 28.01 has no limiting factor on the judge’s discretion to hold a pretrial evidentiary hearing based on any threshold evidentiary standard. Accordingly, the trial court did not err in conducting the pretrial evidentiary hearing in Hill’s case but instead acted within its bounds of sound discretion.

Aug30
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Spousal privileges and Texas Rule of Evidence 504 with a couple holding a finger to their lips, symbolizing confidentiality in marital testimony.

Can One Spouse be Forced to Testify Against the Other?

ByCriminal Defense, Jury Trial

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

Couple holding fingers to lips symbolizing confidentiality, with text "Spousal Privileges Texas Rule of Evidence 504," relevant to Texas marital communication and spousal immunity privileges in criminal trials.Everyone 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 aretwo 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

Mar09
Love4
Facebook logo on smartphone with text highlighting social media as evidence in criminal cases.

Facebook Likes and Twitter Tweets as Evidence in a Criminal Case

ByCriminal Defense

Smartphone displaying Facebook logo, emphasizing social media's role as evidence in criminal cases, relevant to legal discussions by Howard Lotspeich Alexander & Williams, PLLC.In the age of social media it seems more and more that our identities are being fast tied to what we post, like, love, or retweet on social media. Our firm handles criminal cases on a daily basis and in the course of our work we’ve seen an increasing reliance by law enforcement and prosecutors on social media websites like Facebook, Twitter, and Instagram. More often than not, investigators are scrolling through the entirety of a person’s social media profiles scouring the information for incriminating statements, pictures or conversations. A Facebook picture or an Instagram post that one might consider innocent, humorous, or obscure could end up being a key piece of evidence used against that person in a court of law.

Here’s what you need to know about social media and the law.

Anything you post on Facebook, Twitter, and Instagram can and will be used against you.

Period. The general rule that citizens need to know is that by exposing information about yourself on social media you are essentially waiving your privacy rights. A person can’t scream at the top of their lungs in an open room the most private fact about themselves and then expect it to go unheard. The same is true about social media. By posting on sites like Facebook, Twitter,and Instagram, you are essentially consenting to whatever information you disclose to be made public.  Even if your profile is set to private, your friends could end up sharing your content. Once public, that information is now available to everyone…including the government. If you are under investigation or suspect you might be under investigation for a criminal offense, and you have social media profiles, never post anything if you think it has even a remote possibility of hurting your case.

What can be done to protect my privacy on sites like Facebook, Twitter, and Instagram?

Don’t post! The first thing you can do is to place a limit and a premium on your social media activity. Some people feel like social media websites are the perfect forum for venting frustrations, making off-color jokes or personally attacking others. If you think about what you are posting in terms of who might potentially see your post, then you should limit the things you say. Remember, anything you post will be considered public information.  If the temptation is too strong to post on social media, then you should really consider disabling your account altogether (at least while your criminal case is pending).

Can Social Media Privacy Settings be used to protect my information?

Privacy settings are the second step in preventing the government or any other unwanted viewers from obtaining your social media information. The majority of the more popular social media websites allow you to limit who can see your information and what can be seen. Putting strict limits on who and what can be seen on your Facebook, Twitter, and Instagram pages can be very effective in preventing unwanted eyes. But is it enough? For the general public, yes, it is. Further, law enforcement agents typically do not have special privileges to see information that has been set to “private” either. But, there are other ways of getting your information and viewing your profiles. Law enforcement has been known to create fake profiles with attractive pictures to entice users into accepting friend requests and allowing them to view information intended for friends only. There is nothing that legally prevents law enforcement from taking such actions.

If my Facebook, Twitter, and Instagram accounts are set to “Private,” is that enough to protect my information?

Ultimately, no. Even if a person hasn’t unwittingly accepted a friend request from an officer or agent and has limited access to their profile via privacy settings, law enforcement can still get a subpoena, court order or search warrant for your social media information.

According to their website, Facebook will only disclose records in accordance with the Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712 and in response to:

  • A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.
  • A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to the basic subscriber records identified above.
  • A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.

So, even if your privacy settings won’t allow anyone to view your profile, law enforcement agencies may still be able to get that information by way of a subpoena, court order or search warrant.

Assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram.

If you’re under investigation for a criminal offense or charged with a criminal offense, you need to assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram. Our attorneys have handled cases involving cases where the government has used Facebook, Twitter, and Instagram postings against our clients. We don’t want that to happen to you. Call one of our attorneys and speak to us about what you can do to protect your information and ultimately your rights.

NOTE: The United States Supreme Court has confirmed that the police CANNOT search your cell phone to discover Social Media evidence, text messages, phone call, or anything else without a proper search warrant.

Feb26
Love5
Texas probation sign showing options for deferred adjudication and straight probation, relevant to criminal defense discussions.

What is the Difference Between Deferred Adjudication and Straight Probation?

ByCriminal Defense

Probation in Texas: Make Sure You are Headed Down the Right Path. What is Deferred Adjudication?

Texas probation sign displaying "Deferred Adjudication" and "Straight Probation," relevant to legal distinctions in Texas criminal law.When we are counseling new clients, we routinely address the punishment range that is available for the charged offense and whether probation is an option in their case.  It is important to note that all criminal offenses (except class C citations) are punishable by incarceration. However, first-time offenders and those charged with misdemeanors and non-aggravated felonies will often receive probation when prosecutors, judges, and juries agree that community supervision (probation) is a better alternative to jail time in the given situation.  For some offenses, however, probation is not an option (see our previous article on 3g offenses in Texas).

For those of you that prefer the bullet points up front, here is the short answer regarding the difference between straight probation and deferred adjudication:

Straight Probation in Texas

  • A person on Straight Probation in Texas must report to probation and complete required terms as set by the judge
  • In a straight probation, the case results in a Criminal Conviction
  • In straight probation, there is no option have the case expunged or non-disclosed upon completion of probation
  • If revoked on a straight probation, the penalty range is limited to the underlying jail term (see more below).

Deferred Adjudication in Texas

  • A person on Deferred Adjudication in Texas must report to probation and complete required terms as set by the judge
  • A Deferred Adjudication Case Does NOT result in a Criminal Conviction
  • In a Deferred Adjudication in Texas, there is an option to have the case non-disclosed upon completion (in most cases)
  • Under a Deferred Adjudication, If revoked, the judge may sentence anywhere in the full punishment range for the offense.

Deferred Adjudication vs. Straight Probation

In Texas, there are two types of community supervision in criminal cases: regular community supervision (or what is typically referred to as “straight probation”) and deferred adjudication (or “deferred probation.”) The difference between them is significant.  Chapter 42.12 of the Texas Code of Criminal Procedure covers with both types of probation in Texas.

Straight Probation in Texas

Let’s discuss straight probation first. As an example, assume someone is facing a charge for a Class A Misdemeanor. The penalty range is 0-365 days in jail. A straight probation offer from the state might look like this:

180 days in jail probated for 12 months.

If you agree to this offer and decide to take it, at the time of the plea the judge would ask for your plea of guilty, find you guilty and assess punishment at 180 days in jail. However, he would not require you to actually serve the jail time. Rather, he would probate the jail time and place you on community supervision for a period of 12 months. If you successfully complete the straight probation by reporting as directed and abiding by the terms and conditions, you would not be required to serve jail time for the conviction.

Straight Probation Comes With a Criminal Conviction

With straight probation, the most significant consequence is the conviction itself. When you plead guilty, the judge finds you guilty and a conviction is rendered. You avoid jail time by the sentence being probated, but the conviction remains on your record. A conviction, even if probation, can never be expunged from your record (regardless of the passage of time), so it is important to be wise with your decision to take a plea agreement in which straight probation is offered.

If you receive straight probation and fail to comply with the terms and conditions, the state can seek to have your probation revoked. At a revocation hearing or sentencing, the judge’s sentencing ability is limited by the underlying sentence received at the time of your original plea. So, in the above example, if you received a sentence for 180 days in jail probated for 12 months and are later revoked, the judge cannot sentence you beyond the 180 days (even though the penalty range for a class A misdemeanor is up to 365 days.)

Deferred Adjudication in Texas

Chapter 42.12 section 5 offers a different type of probation than the straight probation discussed above. It’s called deferred adjudication. Let’s go back to our example and say your facing a Class A Misdemeanor with a penalty range of 0-365 days. A deferred adjudication offer might look like this:

18 months probation

If you agree to this offer, you would plead guilty at the time of the plea. However, the judge would withhold finding you guilty and instead place you on probation for a period of 18 months. The reporting and terms and conditions would mirror those of a straight probation. If you successfully complete the probation and are discharged, you would not be required to serve jail time and you would not receive a criminal conviction.

Deferred Adjudication Does Not Come With a Criminal Conviction

With deferred adjudication, the most significant benefit is the case is dismissed upon discharge and no conviction rendered. You not only avoid jail time, but a conviction as well. You also may be eligible to file for a non-disclosure after discharge in most cases. Section 411.081 of the Texas Government Code is the law covering when and if you can file for a non-disclosure after discharge from deferred adjudication.

As with straight probation, if you receive deferred adjudication and fail to comply with the terms and conditions, the state can seek to have your probation revoked. However, there are some significant distinctions at a revocation hearing or sentencing on a deferred adjudication case. First, the judge’s sentencing ability is unlimited. This means he can use the entire penalty range. In our example, if you receive deferred adjudication for 18 months for a class A misdemeanor and are later revoked, the judge can sentence you anywhere in the penalty range of 0- 365 days. Also and more importantly, if revoked, the judge will find you guilty resulting in a conviction.

Contact Our Fort Worth Criminal Defense Firm if You Have Questions About Deferred Adjudication or Straight Probation in Texas

This was a rough overview of the different types of probation in Texas on criminal cases. Of course, there are always factors that can effect if and which type of probation is available as an option to you. The attorneys at Barnett Howard & Williams PLLC would be glad to discuss your situation and provide more information about these options. Please feel free to give us a call at (817) 993-9249.

NOTE:
→ DWI offenses are not eligible for deferred adjudication in Texas. If you’d like to see that changed, contact your state representatives’ offices and voice your opinion